GN 8.3 Personal Injury Commission - member decisions and appeals
Published: 12 August 2019
Last edited: 1 March 2021
Application: This guidance also applies to exempt workers
Overview
The Personal Injury Commission (the Commission) has exclusive jurisdiction to examine, hear and determine all matters arising under the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and the Workers Compensation Act 1987 (1987 Act). For the Commission’s role in respect of damages, see Insurer guidance GN 9.2 Work injury damages.
This guidance outlines the types of disputes and the process in the Commission to hear and determine legal disputes.
Note: The Commission’s mediators assist parties to resolve work injury damages disputes. Generally, parties must participate in mediation before the worker can commence court proceedings. The Commission’s mediators are appointed by the President. Mediators are, in the exercise of their functions, subject to the general control and direction of the President.
Note: Coal miner workers compensation disputes are determined by the District Court of NSW where coal miners have access to a specialist mining judge and a separate hearing list which exclusively deals with coal mining claims.
The Personal Injury Commission
The Personal Injury Commission is an independent statutory tribunal within the NSW justice system committed to providing a transparent and independent dispute resolution service. The Personal Injury Commission Act 2020 sets out the functions and powers of the Commission.
Personal Injury Commission Rules, procedural directions and policies
The Personal Injury Commission Rules 2021 (the Rules) provide operational direction to the Commission, covering matters of practice and procedure in proceedings.
Procedural directions provide a more detailed explanation of the Commission’s procedures.
The Commission’s policies set standards of practice for the Commission and the people who use the Commission’s services.
Types of dispute
Disputes are assigned to the most appropriate dispute resolution pathway:
- legal disputes
- medical disputes
- expedited assessments
- damages disputes
- other disputes.
Information on the different dispute pathways is available on the Commission's website. The Commission has produced a range of videos to help injured workers understand the role of the Commission and what to expect at different stages of the dispute resolution process. They are available in English and six community languages.
Legal disputes pathway
The disputes that go through this pathway are about entitlements to weekly compensation, medical and related expenses compensation, lump sum compensation for permanent impairment and payments in respect of the death of a worker.
The issues to resolve in a dispute could include whether an injury has occurred, whether the injury happened at work, whether work was a substantial or main contributing factor to the injury, whether medical treatment is reasonably necessary, whether the injured person was a worker, which body parts were injured, and the amount of compensation payable.
The Commission’s conciliation/arbitration process
The Commission has developed a dispute resolution model incorporating a blend of informal negotiation and formal hearing.
The pathway begins with the use of informal dispute resolution techniques to try to resolve the dispute by agreement between the parties. Initially, this is done with the parties and their representatives attending a teleconference. If the parties cannot resolve the matter at this stage, it will proceed to a conciliation conference.
If the dispute is not resolved at the teleconference or conciliation conference, it will progress to a formal arbitration hearing where the Commission will decide the dispute.
The Commission provides multiple mechanisms for the conduct of the conciliation conference and arbitration hearing. Parties can attend in person, via telephone, or via videoconferencing, depending on the circumstances of the case and external factors.
More information is available on the Commission website and in the Commission videos.
Insurer participation in Commission disputes
Fully informed and good faith participation by insurers in the Commission dispute resolution process can help the timely and effective resolution of disputes.
As far as practicable, insurers should ensure that a person with knowledge of the relevant matter, who holds appropriate delegation to make decisions and provide instructions to legal providers is either in attendance in-person or available by phone (as appropriate) during the resolution process.
See Insurer guidance GN 8.2 Insurer participation in disputes and mediations for more information.
Publication of Commission decisions
The Commission operates under a presumption in favour of publication of decisions. In exceptional circumstances decisions may be de-identified or redacted before publication. Decisions are not published for seven days to allow a party time to apply for de-identification or redaction.
Section 58 of the Personal Injury Commission Act 2020 makes provision for the publication of various decisions of the Commission. Decisions of the Commission are published on the legal research databases of AustLII, BarNet Jade and Lexis Nexis.
Appeals from a decision of an member
An appeal of a member decision is made to the Commission constituted by a presidential member. An appeal is made by application to the President.
Appeals from a member’s decision are limited to the determination of whether a decision was or was not affected by errors of fact, law or discretion, and the correction of any such error. The appeal is not a review or new hearing (section 352 of the 1998 Act).
Procedural Direction WC3 – Presidential appeals and questions of law concerns the practice and procedure for an appeal to a presidential member as well as the referral of a question of law to the President.
Appeals from a decision of a presidential member
If a party to any proceedings before the Commission constituted by a presidential member is aggrieved by a decision of the presidential member on a point of law (legal principles and statutory interpretation), the party may appeal to the NSW Court of Appeal.
Permission of the Court of Appeal must be sought to bring an appeal where the amount in dispute is less than $20,000 (as adjusted), or the dispute relates to costs only, or is an appeal from an interlocutory (provisional) decision or an appeal from a decision made with the consent of the parties (section 353(4) of the 1998 Act).
Related: Legislation and regulations
Related: Guidelines and standards
Related: Insurer guidance
Useful resources
Contact SIRA
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