ICASA launches OTT market inquiry; High Court rewrites COIDA disablement assessment rules

ICASA has published a corrected notice of intention to conduct a market inquiry under section 4B of the ICASA Act into the impact of Over-The-Top (OTT) services — including messaging, streaming, and VoIP platforms — on licensees in the telecommunication, broadcasting, and postal sectors. The erratum (correcting the earlier Notice 4129 in Gazette 55299 of 4 September 2026) fixes typographical errors, including the substitution of 'Over-The-Counter' with 'Over-The-Top', and deletes paragraph 4.2.4 relating to a questionnaire. The inquiry will proceed in phases: stakeholders have 10 working days from publication to submit clarification questions; ICASA will respond within a further 10 working days; a Discussion Document will then be published for 45 working days of public comment; and ICASA must publish a summary of findings within 90 days of the inquiry's conclusion. The inquiry could lead to new regulatory obligations for OTT providers or changes to the existing licensing framework.

Two injured workers — a truck driver and a forestry worker — sustained serious occupational injuries resulting in permanent loss of use of limbs. The COIDA Tribunal assessed their permanent disablement at 17% and 13% respectively, relying on the AMA Guides to the Evaluation of Permanent Impairment and Circular Instruction 157 to calculate impairment ratings. Both appealed.

The court held: The court set aside both Tribunal determinations and declared each appellant 100% permanently disabled. It held that the AMA Guides and Circular Instruction 157 are impermissible assessment tools under COIDA, having no statutory force, and that the Tribunals conducted a 'mechanical, tick-box exercise' instead of exercising proper judicial discretion. Applying the Healy principle, the court held that permanent functional loss of use of a limb can be equated to actual loss of a limb under a generous, purposive interpretation of Schedule 2. On costs, the court held that the section 46(7) Magistrate's Court costs cap applies only prospectively and does not affect proceedings pending before 23 January 2026. The Compensation Commissioner was ordered to pay costs on the pre-amendment scale, including costs of two counsel.

Legal impact: This judgment materially changes COIDA disablement assessment practice. It establishes that the Commissioner and Tribunals may not use the AMA Guides or Circular Instruction 157 to determine impairment ratings — tools that have been standard practice. It extends the Healy principle that functional loss of use equals loss of a limb for purposes of 100% disablement under item 6 of Schedule 2. It also confirms that COIDA Tribunal proceedings are inquisitorial, placing the burden to obtain further evidence (such as occupational therapist reports) on the Tribunal rather than the injured worker. The non-retrospectivity ruling on section 46(7) costs protects practitioners' fee expectations in all matters pending before 23 January 2026.