The onset of the global COVID-19 pandemic earlier in 2020 caused a prompt response from the legal system about how it conducts its day-to-day affairs in order to prevent the spread of the disease.

Practice notes and protocols were quickly issued to ensure that in-person attendance was kept to a minimum in favour of appearances via video link and virtual courtrooms, electronic filing of documents, adjournment or rescheduling of some matters, and new social distancing and hygiene procedures for any matters where in-person attendance was required.

Some of these protocols, such as the suspension of jury trials, were relaxed during June 2020 as transmission of coronavirus within the community appeared to ease, but a recent spate of COVID-19 clusters in both Victoria and NSW may yet see these protocols reintroduced and even extended.

Below we take a look at some of the changes forced on the NSW legal system by COVID-19, with a focus on the impact of the pandemic on matters in which we at BPC lawyers specialise – compensation claims.

Changes to workers’ compensation and motor accident matters

Workers’ compensation: When you make a claim for workers’ compensation under the NSW scheme, the matter will often end up in conciliation, arbitration or mediation guided by the Workers Compensation Commission.

In response to COVID-19, the Commission ceased all in-person proceedings and closed the Commission’s hearing rooms and Registry Office in March 2020. As a result, all conciliation, arbitration and mediation proceedings have since been conducted by telephone. At the discretion of the Commission’s President, some proceedings may be conducted by audio-visual conference, or in person, but these exceptions are rare.

Many workers’ compensation claims also involve medical assessments in order to prove the nature and extent of a person’s injury, whether physical or psychological. In-person medical assessments were also suspended in March 2020 but as of 20 July 2020, the President of the Commission has determined that in-person assessments may recommence. Assessments for psychiatric and psychological disorders will still be conducted via video link where possible and appropriate.

It should be noted that all medical disputes will continue to be referred for teleconference with an Arbitrator before referral for medical assessment. Medical assessments via video will still be preferred to in-person assessments wherever possible, with in-person assessment only conducted where other options are not appropriate.

Motor vehicle accident claims: The NSW Government’s State Insurance Regulatory Authority (SIRA), which runs the state’s CTP insurance scheme for motor vehicle accident claimants, also issued COVID-19-related advice in March 2020. Primarily it encouraged injured persons to use telehealth facilities rather than in-person treatment where possible. In order for this means of medical treatment to be accepted as part of any motor vehicle accident compensation claims, it requires pre-approval from the CTP insurer and must be consented to by all parties. Practitioners must consider the appropriateness of this mode of service delivery for each person on a case-by-case basis.

Discussing the urgency of an independent medical assessment with a specialist compensation lawyer, including whether a telehealth assessment is appropriate, and what it means for your claim, is also highly advised.

Likewise, a certificate of fitness or incapacity (because your accident injury means you need to take time off work, or work in a limited capacity) can be issued for periods greater than the usual 28 days. Longer certificates reduce the risk for injured people and doctors of being exposed to COVID-19. Changes to the rules around medical certificates and accessing treatment have been made as a result of COVID-19 in order to make it easier to obtain a current certificate of capacity. Second and subsequent certificates of capacity/fitness, for example, may be issued by the treating physiotherapist or treating psychologist, rather than a medical practitioner, where the injury relates to their area of expertise.

Supreme and District Court changes

Supreme Court: The NSW Supreme Court issued updated COVID-19 advice in June 2020 which continues to limit court attendance and encourage the use of electronic filing of all documents. The Court continues to use an online ‘virtual’ court and other digital technology to allow matters to continue remotely, with documents submitted to the Court via Online Court, E-subpoena and Online Registry.

The Supreme Court commenced a staged return of in-person attendance of some civil matters from 1 June 2020 and jury trials from 29 June 2020 but stressed that some matters would remain in the virtual courtroom environment. Some matters may suit a hybrid model where proceedings are conducted both in-person and by virtual courtroom methods. The Court announced that physical distancing and limits on the size of gatherings within the courtroom, and within the court precinct, would remain in place for some time.

District Court: The District Court in NSW also continues to limit in-person appearances by way of its AVL system (Virtual Courtroom) but some in-person appearances have been permitted since 1 June 2020. In these cases, the number of persons in a courtroom should not exceed 10 persons. The Court has encouraged consideration be given as to whether other participants in the proceedings may attend via remote means.

Where more than 10 persons need to attend in the interests of justice, the courtroom must not exceed the maximum court capacity as determined by the Sheriff of NSW (based on social distancing requirements provided by NSW Health).

In a procedural update the Court has announced that the policy on use of the virtual courtroom for civil matters is being eased for contested hearings but it’s at the discretion of the presiding Judge as to the number of persons who can attend in a courtroom to ensure strict adherence with social distancing restrictions. The use of a virtual courtroom remains available.

Consult your legal representative

Many aspects of ordinary life have been changed by the necessity to prevent the spread of coronavirus, including how our legal system works.

If you have a compensation claim, on foot, or you are about to commence, call BPC Lawyers for a free case evaluation. We can provide timely advice and guidance on how to navigate the multiple COVID-19 protocols and procedures in order to avoid frustrating delays in progressing your claim.

We are award-winning compensation law specialists, meaning we’ve made it our business to understand how to keep a claim moving despite the impact of the COVID-19 pandemic. Contact us today on (02) 8280 6900.