Motor accidents disputes – 2017 scheme

Disputes are assigned to the most appropriate dispute resolution pathway.

Medical dispute

Disputes are assigned to the most appropriate dispute resolution pathway.

Disputes regarding a claimant’s injuries, degree of permanent impairment or treatment may be resolved through the medical disputes pathway.

Most disputes that go through this pathway are about the whether the claimant’s injury is a ‘minor’ injury for the purposes of the Motor Accidents Insurance Act 2017 or about the degree of permanent impairment caused by an injury. These disputes may also concern the medical nature of an injury and treatment for injuries sustained in the motor vehicle accident.

The medical disputes pathway involves an assessment of the injury or condition by a medical assessor. Medical assessors are independent medical specialists appointed by the Commission. The medical assessor will usually examine the claimant and review the information provided by the parties, including, for example, the medical reports and investigations such as scans and X-rays.

The medical assessor provides the Commission with a certificate and reasons that outline their independent assessment about the injury, impairment or treatment.

The medical dispute pathway is as follows:

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Lodgment
Lodgment Examination and assessment Status of assessment Review of a medical assessment Further medical assessment

Lodgment

Applications to resolve a dispute through the medical disputes pathway, and responses to medical dispute applications, may be lodged with the Commission.

When to lodge a dispute resolution application

A claimant or their legal representative may lodge a medical dispute if they disagree with the decision of the insurer on the following medical matters:

  • the degree of permanent impairment of the injured person
  • whether any treatment and care is reasonable and necessary in the circumstances or relates to the injury caused by the accident
  • whether treatment or care provided to an injured person will improve the recovery of the injured person
  • the degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the accident
  • whether the injury caused by the motor accident is a minor injury for the purposes of the Motor Accidents Insurance Act 2017 (the Act).

A medical dispute under the Motor Accidents Injuries Act 2017 may not be referred for assessment until:

  • the decision has been the subject of an internal review by the insurer,
  • the insurer has failed to complete an internal review and notify the claimant of the internal review decision when required to do so, or
  • the insurer has declined to conduct an internal review.

The application for medical assessment should be lodged as soon as practicable after the claimant receives:

  • the insurer’s internal review of the reviewable decision
  • the insurer’s decision to decline to conduct the internal review.

If the insurer has failed to complete the internal review and notify the claimant of the internal review within the required period, the application should be lodged as soon as practicable after that due date.

How to lodge an application

Applications to resolve a medical dispute should be lodged via the Commission’s online portal. There is a single application process for all medical disputes. Claimants who are legally represented may have their lawyer or personal representative lodge the application on their behalf.

If a self-represented claimant is unable to use the portal to lodge their application, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission at the direction of the President.

All relevant information must be attached to the application. An application should not be lodged until all relevant material is available because it may not be possible to include further information later in the dispute resolution process.

How to respond to an application

The respondent will receive a copy of the application via the Commission’s online portal. The respondent must reply within 14 days in the case of an application for a non-binding opinion of a medical assessor has been registered with the Commission, and within 21 days for all other matters. The response should be lodged through the Commission’s online lodgement portal.

If a self-represented respondent is unable to use the portal to lodge their response, they may contact the Commission to obtain a PDF copy of the form or have a copy mailed to them. These forms and the accompanying documents may be lodged via email or post, or in person at the Commission at the direction of the President.

All relevant information that has not been included by the applicant should be attached by the respondent at the time the response is lodged. Respondents may not be able to submit further information at a later time.

How long does resolving a dispute take?

The time taken to resolve a dispute depends on:

  • the issues in dispute
  • the standard of preparation by the parties
  • the willingness of parties to genuinely attempt resolution
  • the availability of the claimant and edical assessors to attend an examination, if required
  • whether a further assessment or review of a medical assessment is sought.

The Commission aims to resolve disputes as quickly as possible and will encourage the parties to resolve their dispute at the earliest opportunity.

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Examination and assessment

When and where will assessment take place?

If a medical dispute is referred to a medical assessor, the Commission will arrange an appointment at the earliest possible time with a specialist in the assessment of the injuries that are the subject of the dispute.

Medical assessments are conducted throughout NSW, at a location suitable to the claimant when possible. The assessment may be conducted by video or without an examination when that is appropriate.

Claimants and legal representatives will be notified by the Commission via its portal of the name of the medical assessor and the date, time and place of the assessment.

The CTP insurer is required to meet the reasonable costs of the claimant attending this assessment.

What to expect at a medical assessment

The appointed medical assessor will review the information provided by both parties, including the medical reports from the doctors who have examined the claimant at the request of their own lawyers or at the request of the insurer, and the medical reports from the doctors who have provided treatment. The Medical Assessor will also review any other relevant documents, including the claimant’s statement and information such as clinical records, radiological investigations, electrodiagnostic investigations and surveillance footage (if any) to help get a full picture of the claimant’s injury and its effects.

To understand more about the claimant’s injury, the medical assessor will ask about the circumstances that caused the injury, the effects of the injury, the treatment the claimant has had to date, and the claimant’s medical history, including previous injuries.

The medical assessor will usually carry out an independent examination of the claimant at the medical assessor’s practice.

The Commission will arrange for an interpreter to attend the assessment, and/or provide assistance for any disability needs, if the claimant requests this.

A claimant may have a support person attend with them at the assessment if the medical assessor agrees. However, the support person cannot take an active part in the assessment. Legal representatives and treating medical or health practitioners cannot act as a support person.

What to expect after a medical assessment

The medical assessor will prepare a certificate that sets out their decision and reasons in relation to the medical dispute. Certificate/s are usually issued within 14 days of the medical assessment.

In matters where more than one medical assessor is required to conduct an assessment, a lead assessor will be appointed. Non-lead assessor/s will forward their certificates to the lead assessor who will prepare and issue a combined certificate. Individual certificates will be forwarded to the parties with the combined certificate.

About Medical Assessors

Medical Assessors are suitably qualified, highly experienced medical practitioners who work in a range of medical specialties. The role of the Medical Assessor is to examine the claimant and provide an independent assessment to the Commission.

Medical Assessors do not to give advice or recommend treatment for the claimant.

How the medical sssessor is selected

Medical assessors are engaged directly by the Commission and are independent of claimants and insurers. The Commission will choose the next available medical assessor with the appropriate expertise to assess the claimant’s injury.

Where possible logistical factors such as where a claimant resides will be taken into account when allocating a medical assessor in order to reduce the requirement for travel to medical assessments.

Medical assessors may also sit on medical review panels.

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Status of assessment

A Medical Assessor’s assessment of the issues in dispute outlined in the Medical Assessment Certificate, is final and binding on the parties.

Status

A medical assessor’s assessment of the issues in dispute outlined in the Medical Assessment Certificate, is final and binding on the parties.

If a party thinks that the medical assessment is incorrect in a material respect, they can lodge an application for a review by a medical review panel. An application for review must be lodged within 28 days of the medical assessment certificate being issued.

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Review of a medical assessment

When to lodge an application for a medical panel review

Either party to a medical dispute may make an application for a medical panel review of a medical assessment by a single medical assessor, but only on the grounds that the medical assessment was incorrect in a material respect. Applications should be lodged within 28 days of the medical assessment certificate being sent the parties by the Commission.

How to lodge an application

Applications for referral of a medical assessment to a medical review panel should be lodged via the Commission’s online portal.

If a self-represented claimant is unable to use the portal to lodge their application, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission at the direction of the President.

Applications for a review must include:

  1. the decision of the single medical assessor that is the subject of the application for review
  2. the reasons why the decision is incorrect in a material respect.

All relevant information must be attached to the application where possible.

How to respond to an application

The reply to an application for a medical panel review should be lodged via the Commission’s online portal.

A reply must be lodged within 21 days of receiving the application for review.

If a self-represented respondent is unable to use the portal to lodge their reply, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission at the direction of the President.

The respondent should provide a reply to the application for further medical assessment as soon as practicable. The reply should include any response to the submissions made by the applicant and any documents the respondent wishes to have considered as part of the review of the medical assessment.

President’s determination

The President will consider an application for review and the matter may only be referred to a medical review panel where the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

The medical review panel

If the review is allowed to proceed, it will be referred to a medical review panel, made up of a Commission member and two medical assessors. The medical assessor who did the assessment being reviewed will not be on the panel.

The panel will meet, usually by teleconference, to review the application and the information provided by the parties. The panel will also review the assessment and all the information previously available to the medical assessor who conducted the original assessment and all relevant certificates issued by the Commission. The panel will consider afresh all aspects of the assessment under review.

The panel will determine whether an examination is needed to complete the assessment and if so, set a time for that to occur, including time for a subsequent teleconference. The panel will also determine whether additional information is required in order to conduct the review.

On completion, the panel will issue a detailed decision which confirms the assessment and certificate of the original medical assessor or they will issue a new certificate (or certificates) to replace the original. The panel may also issue a new combined certificate, combining the results of the review with the results of other assessments included in the original combined certificate. The panel will determine who will write the reasons and which member of the panel will sign any certificates issued on behalf of the panel.

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Further medical assessment

When to lodge an application for further medical assessment

Either party to a medical dispute may make an application for a further medical assessment on the grounds of deterioration of an injury or additional information about the injury. The application may be made at any time; however, the matter may only be referred once by either party for a further assessment.

How to lodge an application

Applications for a further medical assessment should be lodged via the Commission’s online portal.

If a self-represented claimant is unable to use the portal to lodge their application, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission.

Applications for further medical assessments should include submissions as to the nature of the deterioration of the injury or the additional relevant information that is relied on, and how it is such as to be capable of having a material effect on the outcome of the previous assessment. Any information supporting the application should be listed and attached at the time the application is made.

All relevant information must be attached to the application. An application should not be lodged until all relevant material is available because it may not be possible to include further information later in the dispute resolution process.

How to respond to an application

A response to an application for further medical assessment should be lodged via the Commission’s online portal.

If a self-represented respondent is unable to use the portal to lodge their response, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission at the direction of the President.

The respondent should provide a reply to the application for further medical assessment within 21 days. The reply should include any response to the submissions made by the applicant and any documents the respondent wishes to have considered as part of the further medical assessment.

The further medical assessment process

The President will consider whether the deterioration or additional information referred to by the applicant is such as to be capable of having a material effect on the outcome of the previous assessment. If the President determines that the information or deterioration is such as to be capable of having a material effect on the outcome of the previous assessment, the matter will be allocated for a further assessment with a medical assessor.

The process for a further medical assessment is the same as that for an initial medical assessment (insert a hyperlink). The medical assessor will consider all the information previously available to the medical assessor/s who conducted the original assessment/s and all certificates that have been issued by the Commission, including any that have been issued in the intervening period.

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