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RESOLVING DISPUTES UNDER THE MOTOR ACCIDENTS COMPENSATION ACT DISPUTE RESOLUTION SERVICE: FOR ACCIDENTS AFTER 1 DECEMBER 2017

Tuesday, March 06, 2018

DISPUTE RESOLUTION SERVICE (DRS)

Under the new legislation, the DRS will handle all disputes in relation to: 

i.Merit review
ii.Medical assessment
iii.Claims assessment.

The DRS has replaced the Medical Assessment Service (MAS) and Claims Assessment Resolution Service (CARS).

i. MERIT REVIEW

If a claimant has a dispute with the CTP insurer in relation to a determination made on the claim the claimant must request that the insurer undertake an internal review of their decision.

If the insurer has provided an internal review and has made a determination that the claimant does not agree with, or failed to notify the claimant of the outcome of the review within the specified time frame, or has denied the claimant an internal review the claimant may make an application for a merit review by DRS.

An application for merit review must be made within 28 days of receiving the insurers decision, or if no internal review was made, within 28 days of the end of the period in which the internal review ought to have been made.

Please note, it is not possible to make a request for DRS merit review without first requesting the insurer undertake an internal review. DRS time frames are strict and late applications may not be accepted. You should consult your specialist lawyer for assistance completing your application for DRS merit review.

Once a reply is received by the DRS they will arrange the merit review and assign a merit reviewer. The merit reviewer will provide reasons within 28 days of receiving the complete application.

A claimant or insurer may request the merit review decision be reviewed by a DRS review panel. This application must be made within 21 days of the date of the initial merit review decision.

ii. MEDICAL ASSESSMENT

The claimant may make an application for medical assessment by DRS If there is a dispute between the claimant and the insurer in relation to: -

1.Permanent impairment (E.g. level of whole person impairment)
2.Whether care is reasonably necessary
3.Whether treatment and care are related to an injury
4.Whether treatment and care will improve recovery
5.The degree of earning capacity impairment
6. Whether the injury sustained is a “minor injury”

However, to be eligible to make a DRS medical assessment application, the claimant must first ask the insurer to conduct an internal review of their decision.

If the insurer has provided an internal review and has made a determination that the claimant does not agree with or failed to notify the claimant of the outcome of the review within the specified time frame, or has denied the claimant an internal review, the claimant can make an application for a medical assessment by DRS to resolve the medical dispute.

How to make an application

The claimant must make the application for medical assessment by DRS within 28 days of receiving the insurers internal review decision or if no internal review was made, within 28 days of the end of the period in which the internal review ought to have been made. DRS time frames are strict and late applications may not be accepted.

Once the claimant makes an application for medical assessment, the insurer has 14 days to reply, except for disputes concerning non-binding opinion medical assessments where the insurer has seven days to reply.

If the insurer does not reply within the stipulated time frame DRS may make a decision without the reply.

The matter will then be assigned to one or more medical assessors. The medical assessment may be on the papers, via teleconference/videoconference, face to face meeting, or by way of medical examination.

Determination of medical assessment

The DRA medical assessor will provide their certificate as soon as practicable, but ideally within 14 days of the client being medically examined, or if no examination, within 14 days of the assessor completing the assessment. However, in some cases the assessor may take longer to provide their certificate.

If there is an obvious error in the certificate either party may request that the assessor corrects the mistake in the certificate.

Once the insurer receives the medical assessment certificate they must inform the claimant of how and when the insurer will give effect to the medical assessment decision as well as the impact of the assessment decision on their claim.

Further medical assessment

A medical assessment conducted by DRS may be referred for another medical assessment if the injury has deteriorated or if there is additional information about the injury. For example, if a claimant was examined as having under 10% whole person impairment, and their condition deteriorated after the initial assessment, the claimant could then make a DRS application for further assessment in the hope of gaining a whole person impairment assessment of over 10%.

Applications for further medical assessment may be brought at any time. However, only one further medical assessment can be made. Therefore, if a claimant’s condition is deteriorating it is important to make sure that the condition has stabilised, and will not get worse, and there will not be a need for surgery in the future. If surgery is required, it is advised that the further medical assessment be postponed until surgery is complete and the medical condition has stabilised.

As a further medical assessment is the last opportunity to be assessed it is important that the claimant discuss their condition with their lawyer, as well as their relevant medical specialists.

Review of medical assessment certificates

Either party may request that the DRS review a single medical assessment by with a single medical assessor or by a review panel if they believe the decision is incorrect in a material respect. Application for a medical assessment review must be made within 28 days of receiving the certificate of the single medical assessor, and only one review may be made of a medical assessment certificate.

Once the application for review is made, a reply may be lodged by the respondent within 14 days of receiving the application. If the reply is late or does not comply with the rules DRS may decline the reply and make a determination without it.

The DRS will review the application, and reply (if applicable) and make a determination as to whether the initial medical assessment was incorrect in a material respect. The matter will then be assigned to a panel of at least two medical assessors. It is possible that the review may include an additional medical examination.

The appeal panel may accept further material that was not available at the initial medical assessment, however it will conduct the review by way of new assessment of all the mattersin question. A claimant wishing to have new material assessed at the review should discuss with their lawyer any implications that this may have on their case.

The review panel will provide their review certificate as soon as practicable, but ideally within 28 days of the review assessment.

iii. CLAIMS ASSESSMENT

The claimant may refer a matter to DRS if it is in relation to: 

1.Damages settlement approval
2.Miscellaneous claims assessment
3.Damages claims assessment
4.Further damages claims assessment

1. Damages settlement approval

If a claimant is not legally represented, the claimant will need to obtain approval from DRS before they can settle their case.

2. Miscellaneous claims assessment

Miscellaneous disputes include disputes in relation to: -

  • Whether the death or injury has resulted from a motor accident in the state of NSW
  • Whether the motor accident concerned was caused by the fault of another person
  • Whether the motor accident was caused by the injured person (contributory negligence)
  • Whether the claimant has suffered minor injuries and is not entitled to statutory benefits after 26 weeks of the date of accident
  • Whether a serious driving offence was committed (no statutory benefits)
  • Whether the claimant has given full and satisfactory response for non-compliance with a duty or for a delay (E.g. not making a claim within the statutory time frame or not reporting the accident to the police within the statutory time frame)
  • Whether the motor accident verification requirements have been complied with

How to make an application

In order to refer the dispute to the DRS for miscellaneous claims assessment the claimant must first ask the insurer to conduct an internal review of their decision.

If the insurer has provided an internal review and has made a determination that the claimant does not agree with, or failed to notify the claimant of the outcome of the review within the specified time frame, or has denied the claimant an internal review, the claimant can make an application for a miscellaneous claims assessment by DRS to resolve the dispute.

An application for merit review must be made within 28 days of receiving the insurers decision, or if no internal review was made, within 28 days of the end of the period in which the internal review ought to have been made.

The respondent may reply to the application for miscellaneous assessment within seven days for statutory benefit disputes, 14 days for procedural disputes, and 21 days for fault and contributory negligence disputes.

If the respondent does not reply within the stipulated time frame DRS may make a decision without their reply.

The dispute will then be assigned to a dispute resolution officer who will contact all parties and arrange an assessment. The assessment may be on the papers, teleconferences and videoconferences, or face-to-face meetings.

Determination of miscellaneous dispute assessment

The assessor will make a determination as soon as practicable but preferably within seven days of the assessment. The assessor will provide both parties with a certificate and brief statement of reasons for the determination. Either party may request that an obvious error be corrected in the certificate.

Once the insurer receives the medical assessment certificate they must inform the claimant of how and when the insurer will give effect to the dispute assessment decision as well as the impact of the assessment decision on their claim.

3. Damages claims assessment

Both the claimant and the insurer may refer a claim for damages to the DRS for assessment of pain and suffering and past and future economic loss.

To have damages claims assessed by DRS the claimant must make a claim for common law damages within two years of the date of accident, and the application for claims assessment with DRS must be made within three years of the date of accident.

4. Further damages claims assessment

Both the claimant and the insurer may refer a claim for damages to the DRS for a further claims assessment where there is significant new evidence produced in court proceedings after a claims assessor has previously assessed a claim.

If you need help with the dispute resolution services under the Motor Accidents Compensation Act, the team at Garling & Co can help. Contact us today on the following via:

  1. Ph: (02) 8518 1120
  2. Email: info@garlingandco.com.au
  3. Or complete our FREE Confidential Case Assessment here

GARLING & CO LAWYERS 2018

 

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