Key Takeaways

The Personal Injury Commission Act 2020 (PICA) will commence on 1 March 2021.

The Personal Injury Commission (PIC) Rules 2021 (Rules) also come into force on 1 March 2021 and will apply to all proceedings commenced in the PIC on or after 1 March 2021. Pending proceedings in the Workers Compensation Commission (WCC) as at 28 February 2021 will not be impacted by the PIC Rules and the WCC Rules 2011 will continue to operate in those proceedings.

The PICA has also introduced changes to the role, functions and operations of the Workers Compensation Independent Review Office (WIRO) and provides for a new Independent Review Officer (IRO) to deal with complaints from injured workers about the acts or omissions of insurers.

A new Complaint Handling Protocol (Protocol) will replace the existing WIRO Enquiry and Complaint Protocol from 1 March 2021. The Protocol requires the insurer to respond to a complaint within two working days.

Key Changes

Personal Injury Commission (PIC) Rules 2021

The PIC Rules replace the WCC Rules 2011 for proceedings filed on or after 1 March 2021. In general, the Rules closely resemble the existing WCC Rules in practice, although some amendments to the structure and wording have been made.

There are however a few changes implemented by the new PIC Rules (relevant to workers’ compensation claims) that are worth noting. These are:

• The PIC will only accept lodgement of documents via the online portal (ECM system) unless the President (or delegate) allows otherwise. (Rule 23(2))
• The President (or delegate) may direct that an aspect of a direction for production need not be complied with, if complying would pose a risk to the safety, health or well-being of a party to or persons affected by the proceedings. (Rule 54)
• Despite s48(3) and (4) of the PICA (which provide that in proceedings where a claimant is not legally represented, leave must be obtained for an insurer to be legally represented) an insurer is not required to obtain leave to be legally represented for the following purposes (Rule 61):
  • The preparation and lodgement of a written application, reply, submission or other document;
  • The participation in the preliminary teleconference or conciliation conference;
  • The preparation and sending of correspondence to the Commission or other party.
• Surveillance recordings can only be submitted to a medical assessor in exceptional circumstances as determined by the PIC. The claimant has a right to file a response addressing the surveillance recording within 7 days of service of the recording on the claimant. (Rule 109)
• A support person can accompany the person being assessed in medical assessment proceedings if the person being assessed is under a legal incapacity. The support person cannot be the legal or union representative or a treating medical or health practitioner of the person being assessed. (Rule 110)
• In Panel Review Proceedings, the panel can determine its own procedure and determine the matter on the papers. (Rule 128)
• Publication of PIC decisions is mandatory however there is provision for de-identification of all or part of a publishable decision or redaction of a publishable decision. (Rules 131 and 132)

New Complaint Handling Protocol

The new Protocol aims to provide a clearer process for achieving ‘Fast and Fair solutions’ to complaints.

The Fast and Fair Solutions Method includes the following steps:

• the receipt and assessment of a complaint
• the request for a response from the insurer
• the assessment as to whether a fair and reasonable solution has been reached or whether further escalation is required before finalising the complaint.

Under the Fast and Fair Solutions Method, the IRO will email a Notice of Complaint to the insurer. A Notice of Complaint will generally contain:

• a summary of the complaint and information about the solution the person making the complaint is seeking
• a request for information from the insurer to respond to the complaint including questions that will assist the IRO to consider complaint
• a request that the insurer consider a fair and reasonable solution to the complaint.

The Protocol requires that the insurer provides a response to the Notice of Complaint within two business days. This is a small amendment from WIRO’s Enquiry and Complaint Handling Protocol which provided that an insurer respond within 48 hours.

Under the new Protocol, if a Notice of Complaint is sent after 5pm, it will be deemed to have been received the following business day.

In some instances, the IRO may request that an insurer respond sooner than two business days in matters that are assessed to require an urgent response.

The Protocol also acknowledges that in some circumstances, an insurer may not be able to provide a response within two business days (for example where a staff member is absent or the response requires liaison with an employer). In such circumstances, the insurer is to provide an ‘interim response’ setting out the available information along with a suggested plan of action to respond to the Notice of Complaint in its entirety.

Upon receipt of the insurer’s response, the IRO will examine the response to ensure all matters have been addressed, and assess whether the response and proposed solution are fair and reasonable. The IRO will also discuss the response with the complainant to assess whether it responds to their concerns and provides an acceptable solution.

Implications

While not particularly revolutionary, the changes implemented under the new PIC Rules appear to represent the formalisation of some practices already adopted in the current WCC context.

Essentially then, it is business as usual.

The new Complaint Handling Protocol serves as a timely reminder for insurers to respond promptly to any complaints or to provide the IRO with an ‘interim response’ outlining the steps that will be taken to address the issues raised.