Statutory Benefits under the NSW CTP Scheme - 6 Tips and Traps

There have been reports that some CTP insurers have been insisting that a claimant exhaust their sick leave entitlements through their employer before they are entitled to receive statutory benefits of weekly compensation. This is not true. Anyone who is earning an income and is injured as a result of a motor accident and suffers either a total or partial loss of earnings, as a result, is entitled to weekly payments of statutory benefits. This is despite also having an entitlement to sick leave through their employer. A person who is injured is entitled to claim both benefits.

A CTP insurer has a positive duty to advise the claimant that they should in fact cease using their sick leave entitlements and commence payment of statutory benefits. A person so injured is also entitled to seek re-crediting of their sick leave payments from their employer if they wish to do so. If you are paid both sick leave and weekly benefits, you can refund your sick leave to your employer and have your sick leave re-credited to you in case you may need it in the future.

Additionally, an injured worker is entitled to paid care if they are unable to look after themselves due to an injury. Some CTP insurers have been insisting that the claimant’s partner, spouse, children or other person they are living must provide care for free. This also is not the case. The insurer may pay for commercial care and assistance if it is reasonably required as a result of an accident.

Statutory benefits can only be ceased by the insurer making a decision about one of the following:-

1. That the motor accident caused wholly or mostly by the fault of the person claiming statutory benefits; or
2. The person claiming statutory benefits only injury is a result of the motor vehicle accident were minor injuries.

Statutory benefits ceased after 52 weeks if the insurer can prove that one of the above matters applies in your claim.

The insurer is required to investigate the circumstances of the accident to determine who was at fault and also obtain relevant reports and information in relation to your condition so they can determine whether or not there is a minor injury. An insurer should not make a decision to cease payment of statutory benefits until they have made proper investigation. The onus is on the insurer to obtain the necessary information and make a proper and informed decision. It is not on the injured party to prove that for example he or she was not at fault or that he or she does not have a minor injury. Despite the onus being on the insurer, they will often conduct a brief or cursory examination of these issues before making a decision. If you believe that the insurer’s decision is incorrect you should consult an Accredited Specialist in Personal Injury Law as you only have 28 days to appeal any such decision made by the insurer.

If as a result of a motor vehicle accident you have suffered a total or partial loss of earnings as a result of an injury, then you are entitled to weekly payments of statutory benefits under the Act.

You are entitled to 95% of your pre accident weekly earnings during the first 13 weeks after a motor vehicle accident which then reduces to 80% in the case of total loss of earning capacity or 85% in the case of partial loss of earning capacity.

“Pre accident weekly earnings” is defined as the weekly average of the gross earnings received during the 12 months immediately before the day on which the motor vehicle accident occurred.

To calculate the pre accident weekly earnings, you average your weekly gross amount received during the 52 weeks immediately prior to the accident. The insurer is required to make a written decision in relation to the amount that they intend to pay for statutory benefits and how they have calculated the pre average weekly earnings. If you disagree with the insurer’s calculation of pre average weekly earnings, then you can appeal or challenge that decision by way of review through the Dispute Resolution Service of The Personal Injury Commission. Unfortunately no legal costs can be claimed to assist in determining the pre average weekly earnings.

To cease statutory benefits, the insurer needs to decide whether the person injured in the motor vehicle accident has a “threshold injury”.  A threshold injury is defined as a soft tissue injury or a minor psychological injury.

The Motor Accidents Injuries Act defines a minor injury as follows:

1. Soft tissue injury.
2. A minor psychological or psychiatric injury.

A soft tissue injury is defined as:

“an injury to the tissues that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrosis tissues, fat, blood vessels and synovial membranes) but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.

The regulations add the following: –

“an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury.”

A minor psychological or psychiatric injury is defined as:-

“a psychological or psychiatric injury that is not a recognised psychiatric illness.”

This means that if you have sustained PTSD  as a result of a motor vehicle accident, this is a recognised psychiatric injury and therefore is a non threshold injury.

The insurer must make a decision about whether you have a threshold injury within the 52 week period. The insurer should obtain all of your medical records from every doctor you have consulted as a consequence of any injury sustained in the motor vehicle accident so they can make a proper and complete decision as to whether you have a threshold injury. Insurer’s will often not obtain all relevant medical evidence when making their decision. If you disagree with the insurer’s decision you can challenge this decision through the Personal Injury Commission.

You are entitled to seek the assistance of a lawyer to assist you in challenging the insurer’s decision.

To receive statutory benefits beyond 52 weeks and also be entitled to make a claim for common law damages, the insurer must make a decision within the 52 week period as to whether or not the motor vehicle accident was caused “wholly or mostly by the fault of the person” claiming statutory benefits.

This is a two-part assessment;

1. Whether the motor accident was caused wholly by the fault of the person claiming statutory benefits. The insurer should look at the facts and circumstances surrounding how the accident happened. If necessary, they may obtain a statement from you from an investigator, they should obtain the police records and a statement from the other driver. Again, a thorough investigation should be undertaken before the insurer makes a decision as to which driver was at fault.
2. Then the insurer decides whether the motor accident was caused “mostly by the fault of the person” who is claiming statutory benefits. The act states that a motor vehicle accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident was greater than 61%.

Contributory negligence is measuring the relative culpability between each driver, or potentially a passenger and the driver. For example, in a recent matter the CTP insurer alleged 75% contributory negligence against a passenger in a vehicle where they knew or ought to have known that the driver was drunk. The passenger was not the owner of the vehicle and the court is required to compare the relative culpability between the passenger and the driver. In that situation, clearly the driver has the more significant culpability as they are driving drunk. Contributory negligence in those circumstances can certainly not ever exceed 50%.

Contributory negligence is usually claimed when pedestrians or cyclists are involved in motor vehicle accidents. Again, there is very rare circumstances where contributory negligence will ever likely exceed 50%. As the court is required to measure the relative culpability between each party involved in the accident. For example, another claim we have had in the past is a cyclist being alleged to have 80% contributory negligence when they were struck by a driver opening his car door after he had parked the car. Whilst the insurer attempted to allege a very high level of contributory negligence, the facts made it clear that the accident was solely caused by the driver opening his car door without looking to see if a cyclist was nearby. Contributory negligence was found to be held at 0%.

If the insurer does issue a notice disputing liability either based on fault or contributory negligence, then you should contact an accredited specialist in personal injury law to discuss the circumstances of the accident and whether it can be challenged.

Legal costs in the CTP scheme are regulated by the Motor Accident Injuries Regulation 2017. As the new scheme introduces a new statutory benefits regime and a modified common law damages regime, a legal practitioner is only allowed to charge legal costs in accordance with the regulations.

In relation to the statutory benefits scheme, there is a maximum payable for legal costs and legal costs are only payable in relation to certain matters. You are entitled to assistance from a lawyer to assist in the statutory benefits scheme in respect of the following matters:

1. Whether the insurer is entitled to refuse payment of statutory benefits where the driver is alleged to have been at fault.
2. Whether the insurer is entitled to refuse payment of statutory benefits after 52 weeks due to threshold injury.
3. Whether the injured person has provided relevant particulars about a claim.
4. Whether for the purposes of a claim against the nominal defendant due search and enquiry has taken place.
5. Whether injury has resulted from a motor vehicle accident for the purposes of determining whether statutory benefits are payable.
6. Whether the insurer is entitled to refuse payment of statutory benefits due to a serious driving offence.
7. Whether the injured person if a late claim is made has given a full and satisfactory explanation for the delay.
8. The degree of permanent impairment that has a result from an injury caused by a motor accident.
9. Whether treatment and care is reasonable and necessary.
10. Whether an injury is a threshold injury.

A lawyer is unable to assist with the following disputes:

• The amount of statutory benefits that are payable
• Which insurer is the insurer of the at fault motor vehicle accident.
• Suspension of weekly payments of statutory benefits or failure to provide information.
• Whether the cost of treatment and care provided to the claimant is reasonable.
• Whether statutory benefits for loss of capacity to provide gratuitous domestic services are payable.
• Whether expenses have been properly verified.
• Whether the cost and expenses incurred by a claimant are reasonable and necessary.

The Act does allow for lawyer to charge legal fees if a common law claim is made for pain and suffering and loss of income. Part of the legal costs and disbursements are paid by the insurer and the remainder of those legal costs and disbursements will be payable by the injured person out of the compensation that they receive. The scheme therefore allows payment of limited costs and disbursements from the insurer.

Always seek the advice of an Accredited Specialist in Personal Injury Law.