Motor Accident Compensation in NSW: Part 5- Dispute Resolution Services

This article continues our series on motor accident compensation in NSW. You can read about the specific features of the Motor Accidents Injuries Act 2017 (“MAIA“) in part 4 found here.

Dispute Resolution Service

The MAIA authorises the establishment of a Dispute Resolution Service (DRS) (s7.9 MAIA). All Claims Assessors and Medical Assessors now fall within the DRS, as does a new class of decision-maker, known as Merit Review Officers. There is some limited overlap between Claims Assessors and Merit Review Officers. Similarly, there is a limited number of Claims Assessors who only can assess claims under the MAC Act.

If a claimant is dissatisfied with the insurer’s decision relating to any aspect of the claim, for example determination of Pre-Accident Weekly Earnings (PAWE), an internal review can be required. If the claimant is dissatisfied with the internal review outcome, or of it does not occur, a merit review application can be made to the DRS. This application must be made within 28 days of the claimant receiving the insurer’s internal review decision, or where no internal review was required, within 28 days of receipt of the reviewable decision (MAG, 7.194).

Note that there is a free legal-aid scheme available for assistance of applicants for External Merit Review applications to the DRS. It is not widely publicised but is very useful.

Definition of ‘Earner’

The MAIA provides a definition of requirements to be met for a claimant to be considered an ‘earner’ for the purpose of obtaining statutory benefits:

1. At least 15 years old; and
2. Employed: at any time in the 8 weeks preceding the motor accident; or during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident; or during a period or periods equal to at least 26 weeks during the two years immediately preceding the motor accident; and had not retired; or
3. Before the accident had entered into an arrangement (whether or not an enforceable contract) to undertake employment or commence a business, at a particular time and place.

DRS to Determine Liability in Claims for Damages

Once a claim for damages is made by a claimant, the matter can be referred for assessment to the DRS. Unlike under MACA, where an insurer denies liability under MAIA, the claim will not be exempt from assessment (Motor Accidents Injuries Regulation (MAIR), 14).

An assessment on the issue of liability is not binding on any party to the assessment (s7.38(1) MAIA). An assessment on the amount of damages for liability is binding on the insurer if:

1. The insurer admits that liability under the claim, and
2. The claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment.

Accordingly, where an insurer denies liability and the claim for damages is assessed by DSR, the insurer may elect not to accept the Certificate of assessment concerning liability. However, there are potential cost implications should they proceed to Court (see below).

Restrictions on Medico-Legal Evidence

Unless a health practitioner is a treating practitioner of the claimant or is ‘authorised’ by the MAG to give evidence, their evidence is not admissible in proceedings before a court for damages, merit reviews and medical assessment, in relation to:

1. Degree of permanent impairment.
2. Whether treatment and care is reasonable and necessary.
3. Whether treatment and care will improve their recovery.
4. The degree of impairment of earning capacity.
5. Whether an injury is a ‘minor injury’.

The DRS will publish a list of authorised health practitioners on its website who are authorised to give evidence. Parties are therefore limited in using the practitioners approved on this list, as the evidence from ‘unauthorised’ practitioners will not be admissible.

Regulation of Costs

The regulation of costs under MAIA, is more far reaching than the limitations imposed by MACA. There is no real utility in my dealing with the costs provisions today.

New Key Limits
Key time limits imposed on claimant and insurer (MAIA and Motor Accidents Guidelines (MAG))

Notice required from the insurer before discontinuing or reducing weekly payments (s3.19):

• When discontinuation or reduction is during the first entitlement period – 2 weeks, or
• When the discontinuation or reduction is during the second entitlement period-4 weeks, or
• When the discontinuation or reduction is after the second entitlement period-8 weeks.

Rejection of a claim by insurer for damages on the ground of non-compliance with motor accident verification requirements (s6.10):

• Within 2 months after receiving the claim, and within 2 months after receiving an explanation for the non-compliance, to reject the explanation.

Time for making of claims for statutory benefits (s6.13):

• Within 3 months after date of motor vehicle accident to which the claim relates.
• Within 28 calendar days after date of motor vehicle accident for weekly payments.

Notice of acceptance of liability by insurer for claim for statutory benefits (s6.19):

• Within 4 weeks after a claim is made for payment of statutory benefits during the first 26 weeks post-accident.
• Within 3 months after a claim is made for payment of statutory benefits after the first 26 weeks post-accident.

Notice of change in insurer’s liability denial (partial or full) decision after receipt of additional information (4.31 of MAG):

• As soon as possible but no later than 14 calendar days of receipt of additional information.

If claimant fails to comply with their duty to minimise loss, insurer is authorised to suspend weekly payments in writing (4.56 of MAG):

• As soon as possible but no later than 14 calendar days of receipt of additional information.

If claimant fails to comply with their duty to minimise loss, insurer is authorised to suspend weekly payments in writing (4.56 of MAG):

• Suspension notice giving the claimant 14 days to comply must be given.

Duty of insurer to make offer of settlement on claim for damages (s6.22):

• As soon as practicable unless the insurer wholly denies liability for the claim.

Restrictions on settlement of claim for damages (s6.23):

• Cannot be settled within 2 years after motor accident unless injury gives rise to a permanent impairment of greater than 10%.

Insurer may require claimant to commence court proceedings (s6.33):

• If claimant has been entitled to commence proceedings for a period of at least 6 months.

Internal review of insurer’s decisions (s7.9):

• Insurer to notify the claimant of results of the review within 14 days after receipt of request.

Time limits for referring claims and making assessment (s7.33):

• A party to a claim cannot refer a claim for assessment under Division 7.6 more than 3 years after the motor accident unless full and satisfactory explanation for the delay is provided and leave granted by a Claims Assessor.

Internal review period by insurer:

Table 7.1 of MAG

• Merit review matters – 14 days
• Medical assessment matters- 14  days
  • treatment and care,
  • degree of impairment of earning capacity
• Medical assessment matters- 21 days
  • degree of impairment
  • minor injury
• Miscellaneous claims assessment matters- 14 days
  • all matters under Schedule 2 clause 3 other than matters (1) to (4) below
• Miscellaneous claims assessment matters- 21 days
  • 1. fault
  • 2. person mostly at fault
  • 3. serious driving offence exclusion
  • 4. contributory negligence

Reply period for Merit review applications:

Table 7.2 of MAG

• Funeral expenses – 7 days
• Weekly payments – 7 days
• Treatment and care benefits – 7 days
• Damages claim – 14 days
• Other merit review matters – 7 days

Application for a medical assessment must be made:

• Within 28 days of claimant receiving insurer’s internal review decision, or
• Within 28 days of the due date if the insurer fails to complete and notify the internal review decision.

Comment

With any new legislation setting out to achieve such a complete overhaul, only time will tell how these changes will apply in practice. On the face of it, it appears there will be a number of initial challenges for all involved:

• with the increase in the types of disputes determinable by the DRS whether there will be an increase in administrative law challenges in the Supreme Court
• whether there will be inconsistent findings on liability with respect to entitlement to statutory benefits versus damages
• whether the inconsistency is addressed where claimants with permanent impairment assessments of well above 10% for ‘minor injuries’ have no entitlement to non-economic loss, but a claimant assessed at 11% for non-‘minor injuries’ is entitled to damages for non-economic loss
• whether the limitations on the use of expert opinion challenges the opinion rules of evidence under the Evidence Act 1995 and the UCPR rules relating to expert evidence

the impact on workers compensation insurers and s151Z recovery actions.

Read more about Motor Accident Compensation in NSW in part 6 of the series, “ Medical Assessment Services“.