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

Statutory benefits are payable to anyone who has sustained an injury arising out of a motor vehicle accident in NSW. Statutory benefits are payments of weekly compensation and medical expenses for up to 26 weeks (and possibly longer) following a motor vehicle accident.

An Application for Personal Injury Benefits for payment of weekly compensation and medical expenses is made to the CTP insurer of the vehicle who you consider at fault (if there is only one vehicle in the accident then the claim is made against that vehicle). A claim is made through the State Insurance Regulatory Authority (SIRA) website found here – https://www.sira.nsw.gov.au/

Legal assistance is unavailable to assist injured people apply for personal injury benefits under the scheme. Some CTP insurers have taken advantage of this and do not accurately and fairly compensate people under the Act.

Here are 6 tips and traps you should be wary of if you have made a claim as a result of an injury caused by a motor vehicle accident.

CTP Insurer demanding Workers exhaust Sick leave

There have been reports that some CTP insurers 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.

The Insurer can only cease Statutory benefits by providing you notice in writing

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 26 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.

What is a “minor injury” under the new Act.

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.

How to Calculate Pre-Injury Weekly Earnings

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.

That is, you average out the 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 SIRA. https://www.sira.nsw.gov.au/ Unfortunately no legal costs can be claimed to assist in determining the pre average weekly earnings.

What is a “minor injury”?

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

The definitions of a minor injury are as follows: –

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, facia, 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 or an adjustment disorder as a result of a motor vehicle accident, this is a recognised psychiatric injury and therefore is not a minor injury.

The insurer must make a decision about whether you have a minor injury within the 26 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 minor 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 DRS.

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

The insurer must make a decision about Liability

To receive statutory benefits beyond 26 weeks and also be entitled to make a claim for common law damages, the insurer must make a decision within the 26 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%.

It is therefore almost impossible for an insurer to allege greater than 61% contributory negligence and claims for statutory benefits and common law should almost never be declined on this basis.

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.

Know how Legal Costs are charged

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 26 weeks due to minor 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 minor 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.

About Matthew Garling

Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.

Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
Moussa I.
14:23 20 Sep 21
Great attitude! they return my call every time I callI'm very confident I will reach something good with garling &co
Dulce L.
08:48 23 Aug 21
Garling & Co have been exceptional. Matthew was always professional attentive clear and concise, I felt up most confidence in his management dealing with my matter always had my best interest. i... highly recommend Garling & Co Lawyersread more
Melissa H
11:53 10 Aug 21
I am grateful to have had Matthew represent me on my motor vehicle compensation claim.After meeting with two lawyers previous to deciding on Garling and co, I was left unsure and confused as to... where I stood regarding my claim. Matthew and Allison were incredibly helpful, put my mind at ease, and took the worry and stress out of an already difficult situation.Through the settlement process they would always keep me informed and made time to answer all of my questions. I am really pleased with the outcome of the settlement.Thank you to the team at Garling and Coread more
Violeta C.
07:30 05 Aug 21
My experience with Garling & Co was great. Matthew was always professional, attentive and communicated in a clear manner. I felt confident in his management of my matter & always had my best interest... in mind.I have no reservation in recommending Matthew & the Garling & Co team.read more
Sonia C.
03:04 05 Aug 21
Ann F.
04:11 04 Aug 21
Professional and helpful
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Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
Moussa I.
14:23 20 Sep 21
Great attitude! they return my call every time I callI'm very confident I will reach something good with garling &co
Dulce L.
08:48 23 Aug 21
Garling & Co have been exceptional. Matthew was always professional attentive clear and concise, I felt up most confidence in his management dealing with my matter always had my best interest. i... highly recommend Garling & Co Lawyersread more
Melissa H
11:53 10 Aug 21
I am grateful to have had Matthew represent me on my motor vehicle compensation claim.After meeting with two lawyers previous to deciding on Garling and co, I was left unsure and confused as to... where I stood regarding my claim. Matthew and Allison were incredibly helpful, put my mind at ease, and took the worry and stress out of an already difficult situation.Through the settlement process they would always keep me informed and made time to answer all of my questions. I am really pleased with the outcome of the settlement.Thank you to the team at Garling and Coread more
Violeta C.
07:30 05 Aug 21
My experience with Garling & Co was great. Matthew was always professional, attentive and communicated in a clear manner. I felt confident in his management of my matter & always had my best interest... in mind.I have no reservation in recommending Matthew & the Garling & Co team.read more
Sonia C.
03:04 05 Aug 21
Ann F.
04:11 04 Aug 21
Professional and helpful
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