Motor accidents disputes – 2017 scheme

Merit reviews involve the determination of disputes between the insurer and claimant about matters such as entitlements to statutory benefits. Merit review disputes include topics such as weekly benefits payments, funeral expenses, payment of expenses such as treatment and care, rehabilitation, vocational training, and entitlement to recover costs in relation to claims for statutory benefits, including legal costs.

Only a claimant may lodge an application for a merit review. Before lodging the application for merit review, the claimant must have applied for an internal review of the disputed decision by the insurer.

An application for merit review may be made at any time; however, if it is made more than 28 days after a claimant receives notice of the internal review decision of the insurer, the Commission does not have to accept the application.

The complete list of matters that may be the subject for an application for merit review is set out under Schedule 2 of the Motor Accidents Insurance Act 2017.

The merit review dispute pathway is as follows:

1. Insurer internal review.
2. Lodgment by claimant following insurer internal review.
3. Reply provided by insurer.
4. Determination made by merit reviewer.
5. Certificate and statement of reasons issued.

Most insurer decisions that can be referred for a merit review by the Commission will first need to be referred for an internal review by the insurer. If a claimant requests an internal review of a decision within 28 days of receiving it, the insurer must accept the application.

An application for internal review may be made more than 28 days after the claimant receives a decision from the insurer; however, the application does not have to be accepted.

A claimant may refer a matter for merit review after they have applied for an internal review:

• within 28 days of the insurer having conducted the internal review and advised the claimant of the outcome
• within 28 days of the insurer notifying the claimant that the application for internal review has been accepted but that the insurer declines to conduct the review
• if the insurer fails to conduct the internal review within 28 days of receiving the request.

Applications for merit review should be lodged via the Commission’s digital platform, Pathway.

If a self-represented claimant is unable to use Pathway 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.

The following details must be included in a merit review application:

• the decision of the insurer that is referred for merit review
• the alternative decision sought in the merit review
• issues under review – the elements of the original decision that the party wishes to be reviewed
• the reasons the decision should be changed
• any additional documentation or materials that the party considers relevant to a review of the decision
• any regulated costs sought.

A claimant should list all documents relevant to their application but does not need to attach copies of documents previously provided to the insurer. Only material not previously provided to the insurer must be attached by the claimant to their application.

The insurer is required to provide all documents or materials in its possession relevant to the proceedings, including documents and materials listed in the application by the claimant and all documents the claimant has previously provided to the insurer.

The merit review must be dealt with in a way that best supports the objects of the Personal Injury Commission Act 2020. This may include conducting the review on the papers or via teleconference, videoconference or face-to-face meeting. The merit reviewer will act with as little formality as circumstances permit and will make their findings according to equity, good conscience and the substantial merits of the matter without regard to technicalities.

Information and material that was not before the internal reviewer may be considered and a merit reviewer may also request further information from the parties. The merit reviewer will decide what is the correct and preferable decision in the matter, having regard to the material before them and any applicable written or unwritten law.

A decision of the insurer may be affirmed, varied or set aside. Where a decision is set aside, the merit reviewer may make a decision in substitution for the reviewable decision or remit the matter for the insurer to reconsider in accordance with directions.

The parties will be issued a certificate as to the determination, including a brief statement of reasons.