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 the worker and the employer. The insurer generally represents the employer through the principles of subrogation. It is expected that the worker attends the Commission in person and they generally do. However, insurer participation at the Commission isn't commonplace.

The Commission has produced a number of short videos describing what to expect in the various types of dispute at the Commission. These videos assist workers and others to better understand Commission processes. They are available in English and six community languages.

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

Where there is no insurer representative present, matters can be delayed while the legal representative gets 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 benefits to insurers when they attend Commission matters in-person including:

• building case manager 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.

When attendance in-person is not possible

There will be situations where in-person attendance is not practicable for insurers. In these circumstances, a person with knowledge of the matter, who holds the appropriate delegation, and is sufficiently experienced to give instructions (including instructions on settlement) should be available by telephone.

It is important that the nominated person is available to give their full attention to the matter, ensuring privacy for any discussions without distraction. The nominated person should be able to access the claim file if needed.

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.