Draft motor accident guidelines 2017 - Occupational … channel A mechanism or method through which...

Draft motor accident guidelines 2017

August 2017

Contents

Part A: Premiums ...................................................................................................................................................... 3

Market practices ........................................................................................................................................................ 3

Definitions .................................................................................................................................................................... 4

Introduction ................................................................................................................................................................ 4

Commencement and revocation of previous Guidelines ..................................................................... 5

Application of these Guidelines ........................................................................................................................ 5

Guiding principles ..................................................................................................................................................... 5

Complaints ...................................................................................................................................................................8

Variations and temporary arrangements .................................................................................................... 9

Business plans ........................................................................................................................................................... 9

Premium refunds ..................................................................................................................................................... 10

Point to point ............................................................................................................................................................ 10

Fund levy ...................................................................................................................................................................... 11

Transitional Excess Profits and Losses Guidelines ................................................................................. 11

Premium returns guidelines ................................................................................................................................ 11

Schedule 1: Insurers licensed under the Act ............................................................................................. 12

Schedule 2: Circumstances for refusal to provide a CTP policy .................................................... 13

Schedule 3: Culture requirements for insurers ........................................................................................ 14

[COMPLETE CONTENTS TO BE BUILT]

2 DRAFT Motor accident guidelines – for consultation AUGUST 2017

Part A: Premiums Determination of insurance premiums for third party policies

This section was completed and published separately on 7 July 2017.

Profit normalisation

A draft of this section will be circulated for consultation in early September 2017.

Supplementary determination of insurance premiums guidelines for conditional registration and unregistered vehicle permits

A draft of this section will be circulated for consultation in early August 2017.

Market practices Part 9 Division 9.2, section 9.16 Motor Accident Injuries Act 2017.

Part A: Premiums (Market practices)

For the issuing of CTP policies and expectations for standards of market practices for licensed insurers

Approval to be sought from the Board of the State Insurance Regulatory authority

3 State Insurance Regulatory Authority

https://www.legislation.nsw.gov.au/%7E/view/act/2017/10/fullhttp:/www.legislation.nsw.gov.au/%7E/view/act/2017/10

Definitions 1.1 The definitions in the Motor Accident Injuries Act 2017 (the Act) apply to these

Guidelines.

1.2 The terms used in these Guidelines have the following meanings:

Term Definition

Distribution channel

A mechanism or method through which licensed insurers issue and administer CTP Policies. This can include but is not limited to agents, telephone call centres, the internet and over the counter operations.

eGreenSlip The electronic notification of a CTP policy by a insurer to Roads & Maritime Services.

ITC Input Tax Credits. That is, the credit an entity registered for GST can claim for any GST included in the Green Slip premium paid.

RMS Roads & Maritime Services, a NSW statutory authority constituted by the Transport Administration Act 1988.

Regulatory and enforcement policy

SIRA’s regulatory and enforcement policy, which details the regulatory response to an insurer’s non-compliance with the Act and subordinate instruments.

Introduction 2.1 The Guidelines are issued under Part 9, Division 9.2, section 9.16 of the Act, to

provide the regulatory framework relating to the issue of third party policies by licensed insurers.

2.2 These Guidelines are principles based. They articulate a set of objectives for the issuing of CTP policies and expectations for standards of market practices for the insurer. SIRA’s adoption of principles-based regulation of market practices is intended to encourage flexibility and innovation in the delivery of services to CTP insurance customers, and a competitive market and a level playing field for the insurer while encouraging the insurer to act in good faith when interacting with customers.

2.3 Insurers market practices including distribution arrangements must align with these Guidelines. Insurers are encouraged to act competitively without contravening the Guidelines.

2.4 To help in the interpretation of these Guidelines, SIRA may publish practice notes.



http://www.rms.nsw.gov.au/

https://www.legislation.nsw.gov.au/%7E/view/act/1988/109

https://www.legislation.nsw.gov.au/%7E/view/act/2017/10/part9/div9.2

Commencement and revocation of previous Guidelines 3.1 These Guidelines are effective for market practices from the commencement of

the Act and will remain in force until they are amended or replaced.

Application of these Guidelines 4.1 SIRA will monitor and review compliance with these Guidelines, which may

include audits of insurers from time to time.

4.2 Internal auditing of compliance with these Guidelines must form part of each insurer’s own risk management and compliance program. Insurers have a responsibility to report to SIRA any results of audit programs conducted on CTP business.

4.3 If SIRA regards an insurer or any intermediary acting on behalf of the insurer as having breached the Guidelines, we may take regulatory and enforcement action, in accordance with our regulatory and enforcement policy.

4.4 All contracts or arrangements entered into by the insurer in relation to a quote and sales services for CTP policies must comply with these Guidelines.

Guiding principles 5. When issuing, administering or renewing CTP Policies, the insurer and their agents must:

1. Act in good faith with all customers 2. Use processes and business practices that do not unfairly discriminate against

individual customers or groups of customers 3. Engage in processes and business practices that are transparent and practical

for the purpose of issuing policies to customers 4. Make CTP policies readily accessible and available to all customers.

Acting in good faith

5.1 As SIRA’s regulation of premiums includes an element of community rating, some policies are under-priced and others over-priced relative to insurance risk. Accordingly, it is in the insurers’ financial interests to build portfolios that are over-weight in low risk (over-priced) policies. Notwithstanding such financial interests and the risk equalisation mechanism (REM), under Division 2.3, section 2.24 of the Act, the insurer must have a genuine intention to make CTP policies



available to all customers in a manner that complies with the other principles. In particular:

5.1.1 Insurers and their agents are required to accept all properly identified vehicles presented to them for the issuance of a CTP policy.

5.1.2 Insurers must avoid distribution methods and sales techniques that prejudice this obligation in any way.

Processes and business practices that do not unfairly discriminate

5.2 Insurers and their agents must use processes and business practices that do not unfairly discriminate against individual customers or groups of customers. This applies to each distribution channel. In particular:

5.2.1 Each insurer and its agents must apply reasonable service standards to their processes and business practices. SIRA may impose standards or restrictions on any or all insurers and their agents for specific or general circumstances where we consider it to be in the public interest.

5.2.2 With the exception of pricing differentiation permitted under the motor accident premiums determination guidelines, the insurer and their agents must treat customers in the same manner, irrespective of the risk profile of the vehicle or its owner or the term of the policy.

5.2.3 All customers who are due to receive a renewal notice must be provided with an renewal offer within the prescribed timeframes as specified in clause 5.3.5. A delay in sending renewal notices may only occur with prior approval from SIRA.

5.2.4 Insurers must not refer customers to other insurers or encourage customers to take their business elsewhere. Agents must not refer customers to insurers unless they have an agency arrangement with them.

5.2.5 Insurers must not advise customers of the prices offered by other insurers. Agents must not advise customers of prices offered by insurers unless they have an agency arrangement with them.

5.3 Transparent and practical processes and business practices

5.3.1 All information provided to customers must be clear and accurate, not misleading and expressed in plain language.

5.3.2 Insurers and their agents must only charge premiums as filed and not rejected by SIRA. Insurers are to categorise vehicles correctly and charge the correct filed premium for that category. In order to charge the correct premium, the insurers and their agents must take into account all risk factors and ITC status used to determine the customer’s premium.

5.3.3 All agents contracted by an insurer to provide quotes and sales must ensure they disclose to customers the identity of all insurers they have a commercial arrangement with before they proceed with quotes or sales. Neither the insurer nor their agent may enter into a commercial arrangement with another agent or third party that accesses data from SIRA’s Green Slip Price Check without the relevant insurer first obtaining SIRA's permission. We will not unreasonably withhold such permission.

5.3.4 Where requested by a customer, insurers must act promptly and expeditiously when sending documents by mail or electronically:


• All documents agreed to be sent by mail must be lodged with Australia Post within three working days of agreeing to do so.

• All documents agreed to be sent electronically must be sent within 24 hours of agreeing to do so. Should technology outages occur, the documents must be sent within 24 hours of the insurer’s systems being repaired.

5.3.5 Offers of renewal, including eRenewals, must be sent at least four weeks and no more than six weeks in advance of the renewal date.

5.3.6 All information regarding CTP policies is to be sent to each customer by post unless they have consented to receiving policy information electronically.

5.3.7 Where an incorrect address has been used, including returned letters and failed emails, insurers must take reasonable steps to reissue the policy information.

5.3.8 When a customer purchases a CTP policy or renewal or on new registration, the insurer must electronically transmit an eGreenSlip to Roads & Maritime Services within the following timeframes

Method of payment Requirement

Directly to the insurer via a branch, telephone or electronic means

Within one hour of payment

To insurers agent including Australia Post Within two working days

By BPAY Within three working days

By mail to the insurer Within five working days of date of postage

5.3.9 A written quote or an renewal offer for a CTP policy must:

• enable customers to review the pricing factors applied to their CTP policy, by clearly communicating all relevant pricing factors

• provide information about how to raise any incorrect pricing factors with the insurer or its agent, prior to the purchase

• disclose the name of the insurer as recorded in Schedule 1 and if they operate under a trading name that is different from its insurer name, the quote or offer must disclose both the trading name and the insurer name

• provide contact details for CTP policy queries

• detail the timeframe for eGreenSlips to be sent to RMS, including the timeframe associated with purchasing through different channels.

5.3.10 Common Expiry Date (CED) Fleets and Multiple Expiry Date Fleets are exempt from the transparency requirements of pricing factors. Private vehicle class 1, 10 and 3c are not exempt and must show the pricing


factors used on Green Slips. For example age of youngest driver, age of vehicle etc. Note: section included in original document.

5.3.11 All customer communication must include any information required by SIRA. Insurers must ensure they and their agents use specific scripts when required by SIRA.

Readily accessible and available

5.4 CTP policies (both quoting and sale) must be readily accessible and available to all customers. Insurers are required to give prompt, uniform access and availability to all customers who approach them, irrespective of the risk characteristics of the vehicle and its owner. Insurers may use a range of distribution channels provided that every customer has ready access to their CTP policy through at least one of those channels. Insurers must not use distribution channels to avoid sales. In particular:

5.4.1 Insurers and their agents must not refuse to provide a CTP quote for any motor vehicle required to be insured under the Act except in the circumstances outlined in Schedule 2

5.4.2 Insurers and their agents must provide customers with the ability to obtain a quote for any vehicle or vehicle class without the need to identify themselves or their vehicle’s registration number.

5.4.3 Insurers and their agents must not refuse to provide a CTP policy for any motor vehicle required to be insured under the Act, except in the circumstances outlined in Schedule 2.

5.4.4 Insurers and their agents must make reasonable efforts to help customers provide accurate information to determine the correct premium in accordance with clause 5.3.2.

5.4.5 Insurers must provide customers with at least one payment option for a quote or renewal offer that is available 24 hours a day, seven days a week.

Complaints 6.1 All complaints made to the insurer or its agents in relation to a CTP policy must

be handled in a fair, transparent and timely manner. A complaint is an expression of dissatisfaction made to the insurer or their agent related to its products or services, or the complaints handling process itself, where a formal response or resolution is explicitly or implicitly requested.

6.2 Information about how to make a complaint and the complaints handling procedures must be readily available and accessible to all customers.

6.3 Complaints handling procedures must refer to the rights of the customer to escalate a complaint to SIRA if they’re dissatisfied with the insurer’s review.

6.4 Insurers must keep a record of all complaints received by them or any of their agents in a complaints register, and provide a summary report to SIRA every six months. This report is due within 30 working days of the end of the 30 June and


31 December reporting period each year. It should be formatted as set out by SIRA and include a complaints trend analysis of the risks and potential issues.

Variations and temporary arrangements 7.1 Insurers must notify SIRA of any breach of these Guidelines.

7.2 SIRA may consider a temporary relief from an enforcement response if an insurer is unable to issue timely CTP policy renewals as specified in clause 5.3.5 due to unforeseen system issues.

7.3 Application for regulatory relief can be made in writing to SIRA at any time. SIRA will take into account:

• the reasonableness of the request • the length of time the relief is requested • community requirements and priorities, and/or • other relevant factors.

7.4 SIRA will respond to requests in a timely manner and where appropriate, work with the insurer to comply with the Guidelines as soon as possible.

Business plans 8.1 Under Division 9.2 section 9.18 of the Act, each insurer must deliver to the

authority a copy of its current Motor Accident Business Plan (business plan) on, or not more than 30 days after, each anniversary of the grant of their license or before implementing any significant change to the conduct of its third party insurance business (including, but not limited to, strategy in respect of claims handling, pricing or product distribution), the insurer must deliver to the authority a copy of its revised business plan.

8.2 If the insurer operates more than one third party insurance business (e.g. the insurer issues third party policies under multiple brands), then the insurer must prepare and deliver a business plan covering all of the third party insurance businesses and any business associated with third party policies of the insurer either in a single business plan (highlighting where the practices of the businesses/brands differ from one another) or separate business plans for each third party insurance businesses and any business associated with third party policies of the insurer.

8.3 For the purposes of Division 9.2 section 9.18, the authority requires each insurer’s business plan to include:

8.3.1 a complete description of how its third party business for the issue of CTP policies is to be conducted (including but not limited to claims handling, management, expenses and systems). The complete description must include the structure and operating methods for each distribution channel and any plans for change within the next 12 months. The description will




need to demonstrate how the conduct, culture and their appetite for risk1 in the business satisfies the principles and objectives of the scheme of insurance, benefits and support under the Act and in these Guidelines

8.3.2 a letter from the board of directors of the insurer to the authority confirming present and continuing compliance with APRA’s Prudential Standard CPS 232 or, if replaced, with the APRA prudential standard addressing business continuity management by authorised general insurers, including the development and maintenance of a business continuity plan.

8.4 The authority may require further details in order to clarify the business plan. Insurers may be required to provide the authority with reports on any aspect of their market practices and their compliance with these Guidelines, in a format and timeframe determined by the authority.

8.5 Insurers must notify the authority of any breach of these Guidelines.

8.6 Insurers shall, on request from the authority, submit copies of their customer communication templates including CTP certificates and customer information packs.

8.7 When requested by the authority to do so, insurers must submit scripts, training manuals or other supporting tools used by sales staff for review and approval. Each insurer shall, on request from the authority, provide the authority with other documents related to CTP Policies.

8.8 Insurers must amend any document submitted to the authority if it is required to do so by the authority.

Premium refunds 9.1 A draft of this section will be circulated for consultation in early August 2017.

Point to point 10.1 This section will be drafted for consultation and proposed addition to 'Determination of insurance premiums for third party policies'

1 Culture and appetite for risk may be interpreted to include some or all but not limited to Schedule 3


Fund levy 11.1 A draft of this section will be circulated for consultation at the end of September

2017.

Transitional Excess Profits and Losses Guidelines 12.1 A draft of this section will be circulated for consultation mid-September 2017.

Premium returns guidelines 13.1 A draft of this section will be circulated for consultation in December 2017.


Schedule 1: Insurers licensed under the Act 14.1 This schedule relates to the definition of the insurer and was last updated

on 23 June 2017.

Trading name Licensed insurer

AAMI AAI Limited

Allianz Allianz Australia Insurance Limited

CIC Allianz CIC Allianz Insurance Limited

GIO AAI Limited

NRMA Insurance Insurance Australia Limited

QBE QBE Insurance (Australia) Limited


Schedule 2: Circumstances for refusal to provide a CTP policy 15.1 This schedule relates to clause 5.4.

15.2 Insurers and their agents may refuse to issue a CTP policy in the following circumstances:

15.2.1 where the customer does not pay the required premium, the Fund Levy and GST, for the CTP policy within the timeframe as agreed between the customer and the insurer or agent

15.2.2 where the vehicle is recorded as a statutory written-off vehicle on the NSW written-off vehicles register (WOVR)

15.2.3 where the customer is seeking to purchase a CTP policy from the insurer:

a) for a vehicle not registered on RMS DRIVES database b) for a CTP policy with a different insurer c) for a CTP policy with the same insurer where the customer chooses to

purchase a new CTP policy for that vehicle rather than accepting an renewal offer and the customer does not provide the correct key identifiers used to locate and retrieve information held by RMS.

15.3 Key identifiers are:

15.3.1 registration ID (also known as billing number) and plate number, or

15.3.2 a combination of: ◾

a) a customer identifier, one of: ◾ • NSW driver or rider licence number of the vehicle owner • NSW photo card number • RMS customer number

and

b) a vehicle identifier, one or combination of: ◾ • vehicle identification number (VIN) • chassis number • engine number • plate number.


Schedule 3: Culture requirements for insurers 16.1 Alignment of institutional culture of insurers with the objects of the scheme the

scheme of insurance, benefits and support under the Act:

16.1.1 A definition of the insurer’s target institutional culture.

16.1.2 A detailed plan of the steps to be taken:

a) to maintain or, if necessary, take steps to create an institutional culture directed to: openness and transparency in dealings with the authority openness in the exchange of views, challenge and debate internally

in relation to matters of management, regulatory compliance, claims handling and customer service

adaptability to changing regulatory, commercial and policyholder demands

prioritisation of customer service and outcomes, including the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes

appropriate and balanced incentive structures, remuneration and performance metrics

the understanding by the insurer's senior managers, and the insurer's employees generally, of the insurer's values and how they are applied in practice

b) to embed, monitor and (where appropriate) effect changes to the insurer's institutional culture as it relates to each of the matters outlined in paragraph 2(a).

16.1.3 Details of:

a) arrangements for the conduct of an annual employee engagement survey

b) processes for the assessment of the results of employee engagement surveys.

16.1.4 Details of the:

a) mechanisms established for personnel to elevate and report concerns about practices within the insurer, even when not making any specific allegation of wrongdoing

b) processes for assessing such reports and identifying and addressing any unsatisfactory practices.

16.1.5. Details of:

a) key performance indicators that apply to personnel engaged in the insurer's third party insurance business (including claims handling, management, expenses and systems)

b) the processes for assessment of personnel against those key performance indicators and the effectiveness of those key performance indicators to influence desired behaviours.


16.1.6. Details of the processes for:

a) annual independent assessment of the insurer's institutional culture as it relates to the matters enumerated in paragraph 2

b) development of action items arising out of the assessment in paragraph 6(a)

c) Implementation of action items.

16.1.7. An explanation of the organisational structures to monitor the effectiveness of and ensure accountability for, the arrangements, mechanisms, processes and performance metrics enumerated in paragraphs 3 to 6.

16.1.8. An explanation of the governance structures by which the board of directors of the insurer will form a view of the risk culture in the institution and the extent to which that culture supports the ability of the institution to operate consistently within its risk appetite, identifies any desirable changes to the risk culture and ensures the institution takes steps to address those changes.

Index [TO BUILD ONE INDEX AT THE END OF THE DOCUMENT]

APRA, 10

APRA’s Prudential Standard CPS 232, 10

arrangements, 2, 4, 5, 9, 14, 15

assessment, 14, 15

Business plans, 2, 9

Complaints, 2, 8

conditional registration, 3

CTP, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13

CTP policies, 3, 4, 5, 7, 8, 9

culture, 10, 14, 15

Distribution channel, 4

distribution methods, 6

Division 9.2, 3, 4, 9

eGreenSlip, 4, 7

enforcement policy, 4, 5

governance, 15

Guidelines, 2, 4, 5, 9, 10, 11

Guiding principles, 2, 5

insurance premiums, 3, 10

ITC, 4, 6

market practices, 3, 4, 5, 10

Market practices, 2, 3

non-compliance, 4

objects, 14

premiums, 5, 6

Premiums, 2, 3

pricing, 6, 7, 9

refunds, 2, 10

refusal, 2, 13

REM, 5

risk equalisation mechanism, 5

RMS, 4, 7, 13

SIRA, 4, 5, 6, 8, 9

State Insurance Regulatory authority, 3

transparency, 7, 14

unregistered, 3


Part B: Soft tissue and minor psychological or psychiatric injury

[CONTENTS TO BE INSERTED AT START OF EACH CHAPTER]

Part B: Soft tissue and minor psychological or psychiatric injury ............................................... 16

Introduction ....................................................................................................................................... 17

Definitions ........................................................................................................................................... 18

Assessment of soft tissue and minor psychological or psychiatric injury ............................... 19

Assessment ........................................................................................................................................ 19

Soft tissue injury ............................................................................................................................. 20

Classification of grades of WAD ............................................................................................... 20

Minor psychological or psychiatric injury ............................................................................. 20

Limits to domestic assistance and home maintenance .................................................................... 21

Purpose................................................................................................................................................ 21

Domestic services and home maintenance ........................................................................... 21

Treatment and care incurred more than 26 weeks after the motor accident ...................... 22

Purpose............................................................................................................................................... 22

Treatments ........................................................................................................................................ 22


Introduction

1.1 The Motor Accident Injuries Act 2017 establishes a new scheme of compulsory third party insurance (the scheme) and provision of benefits and support relating to injury to persons as a consequence of motor accidents.

1.2 Two key objectives of the act are:

1.2.1 to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities under Division 1.1 section 1.3(2a)

1.2.2 to keep premiums for third party policies affordable by ensuring that profits achieved by insurers do not exceed the amount that is sufficient to underwrite the relevant risk and by limiting benefits payable for minor injuries under section 1.3(2d)

1.3 These Guidelines are a statutory instrument and are to be read in conjunction with the Act and the regulations.

1.4 These Guidelines are made under the Act, including:

Section Matter

Section 1.6(5) Assessment of whether an injury is a soft tissue or minor psychological or psychiatric injury for the purpose of the Act

Section 3.27 Verification of expenses

Section 3.28(3) Authorising treatment and care payments beyond 26 weeks after the motor accident

Section 3.31 Limits under Guidelines on statutory benefits for particular treatment and care

1.5 A minor injury is defined in the Act and the Regulation. Section 1.6(1) of the Act defines a minor injury as any one or more of the following:

1.5.1 a soft tissue injury

1.5.2 a minor psychological or psychiatric injury.

1.6 A soft tissue injury is an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous 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.

1.7 A minor psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.

1.8 The regulation further defines a soft tissue injury and minor psychological or psychiatric injury:

1.9 Soft tissue injury includes injury to the neck and spine where the injured person experiences lower back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria).



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1.10 Soft tissue injury does not include injury to the neck and spine where the injured person experiences verifiable radiculopathy as defined by Chapter 4 of the permanent impairment guidelines. [link/reference to be added]

1.11 Minor psychological or psychiatric injury includes acute stress disorder or adjustment disorder, as defined under the latest edition of the Diagnostic and statistical manual of mental disorders (DSM) issued by the American Psychiatric Association.

1.12 Minor psychological or psychiatric injury does not include any injury defined under the latest edition of the DSM other than acute stress disorder or adjustment disorder.

Definitions

1.13 The definitions of the terms used in this chapter not otherwise defined in the Act have the following meanings:

1.13.1 Attendant care services – services that aim to provide assistance to people with everyday tasks, and includes personal assistance, nursing, home maintenance and domestic services

1.13.2 Injured person – a person who has suffered an injury in respect of which the Act applies

1.13.3 Verified radiculopathy – the impairment caused by dysfunction of a spinal nerve root or nerve root. It is diagnosed when two or more of the following signs are clinically confirmed to be present:

a) loss or asymmetry of reflexes

b) positive sciatic nerve root tension signs

c) muscle atrophy and/or decreased limb circumference

d) muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution

e) reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution.

1.13.4 Treatment and care – is defined in section 1.4 of the Act and means the following: [global section search – insert hyperlinks]

a) medical treatment (including pharmaceuticals)

b) dental treatment

c) rehabilitation

d) ambulance transportation

e) respite care

f) attendant care services

g) aids and appliances

h) prostheses


i) education and vocational training

j) home and transport modification

k) workplace and educational facility modifications

l) other kinds of treatment, care, support or services as prescribed by the regulations, but does not include those declared by the regulations to be excluded from this definition.

1.13.5 Whiplash associated disorders (WAD) – as defined by the Quebec Task Force Classification for Spinal Disorders: …is an acceleration-deceleration mechanism of energy transfer to the neck. It may result from…motor vehicle collisions. The impact may result in bony or soft tissue injuries (whiplash injury), which in turn may lead to a variety of clinical manifestations (whiplash associated disorders).

Assessment for soft tissue and minor psychological or psychiatric injury

Assessment

2.1 This chapter applies to how assessments for soft tissue or minor psychological or psychiatric injury are to be conducted by a medical assessor on or after 1 December 2017.

2.2 The assessor should consider the available evidence and be satisfied that the injury being assessed:

2.2.1 is being assessed because it was caused by the motor accident and

2.2.2 is a soft tissue or minor psychological or psychiatric injury as defined by the Act and the regulation.

2.3 The assessment should include:

2.3.1 a comprehensive accurate history including pre-accident history

2.3.2 a review of all relevant records available at the assessment

2.3.3 a comprehensive description of the individual’s current symptoms

2.3.4 a careful and thorough physical examination, and

2.3.5 all findings of relevant diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should be concordant with symptoms and findings on examination.


Soft tissue injury

2.4 For the purposes of the assessment, a soft tissue injury includes:

2.4.1 all muscle injuries

2.4.2 all WAD Grade I and II

2.4.3 WAD Grade III except when verifiable radiculopathy is present, and

2.4.4 disc pathology, except when verifiable radiculopathy is present.

2.5 Verifiable radiculopathy should be assessed in accordance with chapter 4 of the permanent impairment guidelines. [Insert link/reference]

2.6 Diagnostic imaging is not considered necessary for the assessment of minor injury.

Classification of grades of WAD

2.7 The Quebec Task Force Classification for Spinal Disorders of whiplash associated disorders (WAD) is to be used to assess these types of soft tissue injuries.

Grade Classification

Grade 0 No complaint about the neck – no physical signs

Grade I Complaint of neck pain, stiffness or tenderness only – no physical signs

Grade II Neck complaint and musculoskeletal signs – these include decreased range of movement and point tenderness

Grade III Neck complaint and neurological signs – these include decreased or absent tendon reflexes, weakness and sensory deficits

Grade IV Neck complaint and fracture or dislocation

Minor psychological or psychiatric injury

2.8 The assessment of psychological or psychiatric injury should be assessed using the latest edition of the DSM issued by the American Psychiatric Association.

2.9 It is acknowledged a person may experience sub-syndromal symptoms of psychological or psychiatric illness, where the symptoms do not meet the definition of a recognised psychiatric illness according to the latest edition of the DSM. Sub-syndromal symptoms of psychological or psychiatric illness are assessed as a minor psychological or psychiatric injury.


Limits to domestic assistance and home maintenance 3.1 This chapter of the Motor Accident Guidelines are issued under the Motor

Accidents Injuries Act 2017 including Section 3.31, and applies to the reasonable and necessary provision of attendant care services to those whose only injuries resulting from the motor accident were minor injuries.

Purpose

3.2 Under Division 3.4 section 3.31, these Guidelines may include provision to approve particular treatment and care as appropriate in respect of any matter and to limit the amount of statutory benefits payable for any particular treatment and care.

3.3 This chapter of the Guideline provides for limits to the amount of statutory benefits payable for domestic attendant care or home maintenance for a person whose only injuries from the motor accident were soft tissue or minor psychological or psychiatric injuries.

Domestic services and home maintenance

3.4 Domestic services or home maintenance for a person whose only injuries from the accident were soft tissue or minor psychological or psychiatric injuries are appropriate if they are:

3.4.1 required as a result of injuries caused by the accident

3.4.2 required because the person has reduced fitness for domestic tasks

3.4.3 reasonable and necessary in the circumstances

3.4.4 required for tasks the person used to do prior to the accident

3.4.5 safe and effective

3.4.6 a properly verified expense as per these Guidelines

3.4.7 up to a rate of $40/hr (ex GST) under the following timeframes

Domestic services and home maintenance availability

Weeks 1-4 post accident Up to 12 hours in total




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Treatment and care incurred more than 26 weeks after the motor accident 4.1 This chapter of the Guidelines does not apply where the motor accident was

caused wholly or mostly by the fault of the person.

4.2 This chapter is made under the Act, including Division 3.4 Section 3.28(3).

Purpose

4.3 The purpose of this chapter is to:

4.3.1 outline what treatment and care expenses incurred by a person with single or multiple soft tissue or minor psychological or psychiatric injuries more than 26 weeks after the motor accident will be authorised to be paid for by the insurer

4.3.2 support the person and insurer, beyond 26 weeks after the accident, with authorised treatment and care that are proactive, improve recovery and support independence and

4.3.3 encourage treatment that will return the person with single or multiple soft tissue, or minor psychological or psychiatric injuries back to work and their usual activities.

Treatments

4.4 In this chapter of the Guidelines, treatment and care includes only:

4.4.1 medical treatment, including pharmaceuticals

4.4.2 dental treatment

4.4.3 rehabilitation

4.4.4 aids and appliances

4.4.5 education and vocational training

4.4.6 home and transport modification and

4.4.7 workplace and educational facility modifications.



4.5 Statutory benefits for attendant care services are not authorised to be paid by the insurer beyond 26 weeks after the motor accident.

4.6 Statutory benefits for treatment and care expenses more than 26 weeks after the accident in respect of single or multiple soft tissue, or minor psychological or psychiatric injuries, are authorised where they are reasonable and necessary and:

4.6.1 the treatment and care will improve the recovery of the injured person or

4.6.2 the insurer delayed approval for the treatment and care expenses or

4.6.3 the treatment and care is essential to ensuring that the persons health or ability to undertake work or other activities of daily living does not significantly deteriorate or

4.6.4 the circumstances require the treatment and care to be delivered after 26 weeks post-accident.

---

Glossary [one at the end] DSM Diagnostic and statistical manual of mental disorders

WAD Whiplash associated disorders

Index [one at the end] American Psychiatric Association, 18, 21

Assessment, 16, 17, 19

Diagnostic and statistical manual of mental disorders, 18

Division 1.1, 17

DSM, 18, 21

minor injury, 17, 20

Motor Accident Injuries Act 2017, 17

non-verifiable radicular complaints, 17

permanent impairment guidelines, 18, 20

psychiatric, 16, 17, 18, 19, 21, 22, 23

psychological, 16, 17, 18, 19, 21, 22, 23

radiculopathy, 18, 20

regulation, 17, 19

Section 1.6, 17

Section 3.27, 17

Section 3.28, 17, 22

Section 3.31, 17, 21

soft tissue, 16, 17, 19, 20, 21, 22, 23

Soft tissue, 16, 17, 18, 20

Treatment and care, 16, 19, 22

Whiplash associated disorders

WAD, 19

[FORMATTING TO BE FIXED]


Part C: Claims Part C: Claims ....................................................................................................................................................... 24

Application of the Guidelines..................................................................................................... 25

Introduction and purpose............................................................................................................ 25

Principles ............................................................................................................................................ 25

Motor accident guidelines for claims ........................................................................................................ 26

Making a statutory benefits claim ............................................................................................ 26

Liability decisions ........................................................................................................................... 27

Weekly payments decisions ....................................................................................................... 29

Evidence of fitness for work ....................................................................................................... 33

Treatment, rehabilitation, care and vocational support .................................................................. 34

Treatment before a claim is made ........................................................................................... 34

Limits on treatment and care expenses ................................................................................ 37

Treatment and care beyond 26 weeks for those with minor injuries ......................... 38

Assessment of degree of permanent impairment .............................................................................. 39

Damages ............................................................................................................................................ 39

Nominal defendant – due inquiry and search ........................................................................................ 41

Investigations ................................................................................................................................... 42

Complaints, reviews and disputes handling .......................................................................................... 43

Information and data integrity ..................................................................................................................... 44

Insurer business plans ...................................................................................................................................... 45

Division 6.1 Motor Accident Injuries Act 2017.

Draft motor accident guidelines - Part C: Claims

For and with respect to the manner in which insurers and those acting on their behalf are to deal with claims.

Approval to be sought from the Board of the State Insurance Regulatory Authority.



Application of the Guidelines

1.1 These Guidelines commence on 1 December 2017 and remain in force until they are amended or replaced. They apply to claims made in respect of motor accidents which occur in New South Wales on or after 1 December 2017.

1.2 The Motor accident guidelines: Claims handling and medical (treatment, rehabilitation and care), which were issued by the State Insurance Regulatory Authority (the authority) on 1 January 2017, continue to apply to claims in respect of motor accidents occurring on and from 5 October 1999 to 30 November 2017.

Introduction and purpose

1.3 These Guidelines are made under the Motor Accident Injuries Act 2017 (the Act), including Division 6.1. They make provision with respect to the manner in which insurers and those acting on their behalf are to deal with claims.

1.4 These Guidelines are to be read together with relevant provisions of the Act and regulations. They are ordered in accordance with the claimant journey to help insurers read them in conjunction with the Act and regulations, and to progress claims promptly.

Principles

1.5 Insurers and those acting on their behalf are to deal with claims in a manner consistent with the principles set out in the objects of the Act, the below principles and the general duties under Division 6.2 of the Act.

1.6 These principles apply across all claims management aspects for the life of a claim:

1.6.1 Proactively support the claimant to optimise their recovery and return to work or other activities

1.6.2 Make decisions justly and expeditiously

1.6.3 Act objectively with honesty and professionalism at all time

1.6.4 Detect and deter fraud

1.6.5 Communicate with the claimant and keep them informed.

1.7 If an insurer does not deal with claims in a manner consistent with those principles the authority will take appropriate action.



https://www.legislation.nsw.gov.au/%23/view/act/2017/10/part6/div6.1

https://www.legislation.nsw.gov.au/%23/view/act/2017/10/part6/div6.2

Motor accident guidelines for claims

Making a statutory benefits claim

Time for making a claim

2.1 As per Division 6.3 section 6.13 of the Act, a claim for statutory benefits must be made within three months after the date of the motor accident to which the claim relates.

2.2 To receive weekly payments of statutory benefits from the date of the motor accident, a claim for statutory benefits must be made within 28 calendar days after the date of accident.

Verifying motor accident

2.3 To make a claim for statutory benefits a claimant must verify the motor accident as per Division 6.3 section 6.8 of the Act.

2.4 To verify the motor accident:

2.4.1 the accident must be reported to the NSW Police Service within 28 calendar days after the accident, unless a police officer attended the motor accident, and

2.4.2 the accident event number from the NSW Police Service must be provided to the insurer.

2.5 If a claimant cannot provide the accident event number, the insurer must request other information to verify the motor accident. Information requested may include:

2.5.1 photographs taken at the scene of accident

2.5.2 witness statements

2.5.3 hospital discharge summary

2.5.4 media reports

2.5.5 property damage insurance claims information

2.6 If the claimant cannot provide the information requested by the insurer the claimant must provide a statutory declaration, which should include whether or not the Police Service provided an accident event number.

2.7 Verifying the motor accident is significant as a claim for statutory benefits need not be dealt with by the insurer until the:

2.7.1 motor accident verification requirements are complied with, or

2.7.2 claimant provides the insurer with a full and satisfactory explanation for any non-compliance, or

2.7.3 Dispute Resolution Service determines that sufficient cause existed to justify non-compliance.


https://www.legislation.nsw.gov.au/%23/view/act/2017/10/part6/div6.3/sec6.13


Notice of a claim

2.8 In addition to verifying the motor accident, a claimant must also give notice of a claim for statutory benefits to the insurer. Division 6.3 section 6.15 (1-3) of the Act details how notice of claims is given.

2.9 Notice of a claim is to be given in writing. The notice in writing can be given to the insurer electronically, by personal delivery or by post.

2.10 Notice of a claim is to contain the information required by the CTP Green Slip Claim Form – Application for personal injury benefits, (attached at Tab A) [reference sample attached at Schedule / appendix]. The claimant must also provide:

2.10.1 a certificate of fitness (Tab B) completed by a treating medical practitioner, and

2.10.2 a signed authority within the claim form authorising the insurer to release information and documents to relevant parties, and obtain information and documents relevant to the claim as agreed by the claimant.

2.11 If a claimant contacts the insurer by phone and provides the required details, the insurer must send a pre-filled claim form to the claimant for their review and declaration that the information is correct. Notice of the claim is not given until the completed form is received by the insurer.

2.12 The insurer must acknowledge the date of receipt of the claimant’s claim form, the assigned claim number and the dedicated insurer contact assigned to manage the claim, in the communication method preferred by the claimant.

2.13 In accordance with Division 6.3 section 6.15(4) of the Act, if notice of a claim has been given to an incorrect insurer and the claim must be transferred to the relevant insurer, the claimant is excused from giving notice of a claim to the relevant insurer. The insurers must cooperate so that the necessary information is exchanged between them so that the claimant’s recovery and entitled benefits are not adversely affected.

Liability decisions

2.14 After a claimant has given notice of a claim the insurer must determine liability. An insurer’s liability decision is very important because it impacts the claimant’s entitlements.

2.15 Acceptance of liability for claim for statutory benefits is detailed Division 6.4 section 6.19(1-8) of the Act.

2.16 The insurer must give written notice to the claimant to confirm if the insurer accepts or denies liability for statutory benefits, including when the decision will take effect and how it will take effect (for example, weekly payments will be paid fortnightly for a specific amount each week).

2.17 This notice must be given within the following timeframes:

2.17.1 For statutory benefits during the first 26 weeks after the accident:

a) Within four weeks of the date the claim is made. The insurer’s decision notice must be clearly identified as ‘Liability Notice – benefits up to 26 weeks’.





2.17.2 For statutory benefits after the first 26 weeks after the accident:

b) Within three months of the date the claim is made. This includes the insurer’s minor injury assessment (according to the definition of ‘minor injury’ under the Act, the regulation and the soft tissue and minor psychological and psychiatric guideline) and contributory negligence assessment (including documented consideration of whether the injury arose from a blameless accident). The insurer’s decision notice must be clearly identified as ‘Liability Notice – benefits after 26 weeks’.

2.18 Where the vehicle considered at fault was registered under the law of a place other than NSW, the NSW insurer managing the nominal defendant claim must notify the insurer of the vehicle considered at fault when the initial liability decision is made.

Information within liability notices for declined or partially declined statutory benefits

2.19 Where the insurer’s notice is not outright acceptance of the claim (or ongoing claim) for statutory benefits the notice must include the following information:

2.19.1 The consequences of the decision, including any effects on the claimant’s entitlement to damages

2.19.2 The reasons for the decision

2.19.3 Copies of the information relevant to the decision, whether or not the information supports the decision

2.19.4 How the decision can be reviewed

2.19.5 That the claimant can be helped by the insurer or the authority and their contact details.

Not wholly admitting liability for the claim

2.20 If the notice states that causation of injury is a reason for accepting liability for only part of the claim, the insurer must inform the claimant in writing of the injury or injuries the insurer determines were not caused by the motor accident. The notice must include the reasons for the determination, the nature and source of supporting evidence and copies of all relevant documents and information considered in the making of the determination whether or not the information or documents supports the reasons for the determination.

2.21 Where the insurer accepts liability for only part of the claim or fully denies liability and subsequently receives information that warrants an admission of liability, the insurer will inform the claimant of the change in its liability decision in writing as soon as possible but no later than 14 calendar days of receipt of the additional information.


Weekly payments decisions

2.12 After an insurer accepts liability for statutory benefits, weekly payments may be payable to a claimant. An insurer may be required to make decisions about the following matters to ensure prompt payment of statutory benefits and to resolve claims justly and expeditiously.

First 13 weeks – interim payment

2.23 Division 2.3 section 2.6(5) of the Act refers to interim payments. The interim payment amount is 12.5% of the maximum weekly statutory benefits amount under the Act. The claimant can nominate a lower amount.

It Earning capacity decisions

2.24 Division 2.3 section 2.16 (1-2) of the Act refers to decisions about earning capacity.

Principles

2.25 An insurer may follow its own procedures in connection with an earning capacity decision but the procedures must align with the following principles:

2.25.1 insurers comply with statutory duties

2.25.2 claimants are given procedural fairness

2.25.3 claimants are given information in plain language

2.25.4 insurers fix errors promptly

Statutory duties

2.26 The procedures to be followed in connection with a decision about a claimant’s earning capacity must comply with the insurer’s statutory duty to act with good faith under Division 6.2 of the Act.

Procedural fairness

2.27 An insurer must give a claimant procedural fairness when it makes a decision about that person’s pre-accident earning capacity or post-accident earning capacity. In addition to the statutory duties, this includes:

2.27.1 Giving the person a fair opportunity to give information to the insurer to consider for the decision.

2.27.2 Ensuring the decision-maker is not or reasonably perceived to be bias to an outcome

2.27.3 Providing the person with all of the information which the insurer has considered in the making of its decision regardless of whether that information supports the decision or not. This includes medico-legal reports.

2.27.4 Give the person a right of response within a reasonable time in respect of an earning capacity decision that may adversely affect them.




https://legislation.nsw.gov.au/%7E/view/act/2017/10/part6/div6.2

Plain language

2.28 An insurer must give information about an earning capacity decision to a claimant in plain language. This means a claimant must be able to easily find, understand and use the information that they need.

Fixing errors

2.29 Insurer must fix errors in its decisions about a claimant’s pre-accident earning capacity or post-accident earning capacity promptly even after the decision has been made. An insurer is responsible for having procedures in place to fix an error of fact or law. A claimant should not be required to follow the statutory dispute resolution process to the end to fix that error.

Model Procedures

2.30 Alternatively, an insurer may follow the model procedures on the next page. [to confirm]

Student pre-accident weekly earnings

2.31 In making a decision regarding a student’s pre-accident weekly earnings the insurer is to have regard to the following:

2.31.1 the course of study being undertaken

2.31.2 pre-accident academic results

2.31.3 published wage data for new graduates relevant to the course undertaken

2.31.4 previous work experience

2.31.5 Australian Bureau of Statistics (ABS) data for age and industry

2.31.6 individual circumstances of the claimant

2.31.7 any other relevant circumstances.


Model procedures for earning capacity decisions


Post-accident earning capacity (after 78 weeks)

2.32 When determining employment reasonably available to a claimant at any time after the second entitlement period (from week 79 after the motor accident), the insurer is to have regard to the following:

2.32.1 the nature of the claimant's injuries

2.32.2 the claimant’s age, education, skill and work experience

2.32.3 rehabilitation services being provided or which have been provided

2.32.4 the nature of the claimant’s pre-injury employment

2.32.5 the claimant's place of residence at the time of the motor accident,

2.32.6 the details given in the certificate of fitness supplied by the claimant,

2.32.7 the length of time the claimant has been seeking employment

2.32.8 any other relevant circumstances.

Non-compliance with providing evidence of fitness for work

2.33 Before an insurer can suspend weekly payments for failure of the claimant to comply with requirements for evidence as to fitness for work, the insurer must:

2.33.1 contact the claimant (via the claimant’s preferred method of communication) to ensure that the claimant is aware of their duty to provide this evidence,

2.33.2 clearly state to the claimant the consequences of not providing the evidence,

2.33.3 provide the claimant with a reasonable time within which to comply

2.33.4 provide the claimant with contact details for the authority.

2.34 If the claimant continues to fail to comply without a reasonable excuse, a suspension notice giving the claimant 7 calendar days to comply must be sent in writing.

2.35 The suspension notice must clearly state the insurer’s reasons for suspending weekly payments, actions the claimant must take for weekly payments to be reinstated and the claimant’s rights of review.

Notice before benefits discontinued or reduced

2.36 If a decision is made to discontinue or reduce weekly payments the insurer must give the required period of notice before that decision takes effect, in accordance with Division 2.3 section 2.19 of the Act.

2.37 Notice may be given verbally but must also be given in writing, and may be delivered by electronic or postal means, using whichever method of delivery is preferred by the claimant.



Claimant’s responsibilities for ongoing weekly payments

2.38 If an insurer accepts liability for statutory benefits, weekly payments may be payable to a claimant.

2.39 If weekly payments are payable, the claimant must ensure that they comply with the following requirements.

Evidence of fitness for work

2.40 A recovering person is required to provide evidence of fitness for work, as stipulated in Division 2.3 section 2.15 of the Act .

2.41 The required forms to use are the certificates of fitness (Tab B) and declaration of employment form (Tab C).

Change in circumstances

2.42 A claimant may verbally notify an insurer of a change in circumstances Division 2.3 section 2.18(1-2) of the Act. However notice must also be given in writing which may include documentary evidence, such as payslips or certificates of fitness for work depending on the change notified. If requested, other documentary evidence or written notice must be provided to the insurer as soon as possible by the claimant.

Residing outside of Australia

2.43 Division 2.3 section 2.21 (1-2) of the Act outlines details for weekly statutory benefits to person residing outside Australia The claimant must submit a certificate of fitness (Tab B) from a treating medical practitioner every three months to establish the person’s identity and continued loss of earnings. Additionally the claimant must provide a completed declaration of employment form (Tab C).

Minimising loss

2.44 The recovering person must participate in all activities to maximise recovery and minimise loss/impact of the injury resulting from motor accident as per Division 6.3 section 6.5(1-3) of the Act .

2.44 If the claimant fails to comply with their duties to minimise loss, the insurer is authorised to suspend weekly payments in writing, only if the insurer contacts the claimant to ensure that the claimant:

2.45.1 is aware of their duty to minimise loss

2.45.2 understands what is expected to comply with the duty

2.45.3 understands the consequences of failure to comply

2.45.4 has had a reasonable opportunity to comply

2.45.5 has the contact details for the authority.








2.46 If the insurer considers that the claimant has had a reasonable opportunity to comply with the duty but has failed to do so, a suspension notice giving the claimant 14 days to comply, must be given.

2.47 The duties of the claimant must be defined in the notice and the notice must be provided in writing. The insurer may provide notice by phone or in person, however the notice must be confirmed in writing to the claimant.

Treatment, rehabilitation, care and vocational support

Treatment before a claim is made

3.1 Insurers may provide limited early access to treatment outside the formal claim process where appropriate to do so in furthering the objects of the Act.

3.2 The insurer may approve access to one general practitioner consultation and two treatment consultations (for example, physiotherapy) before a claim is made but after notification of injury has been given. This may also apply where a notice of claim has not included all required information and documents and the insurer is waiting for further information from the claimant.

3.3 Any treatment approved before a claim is made is approved at the insurer’s discretion and will only be approved within the first 28 calendar days from the date of the motor accident. The insurer has the discretion to approve additional consultation and treatments within 28 days of the accident and without a claim being lodged, having considered the injured person’s circumstances. However, if further treatment is required after 28 days, a claim for statutory benefits must be made by the injured person.

3.4 Treatment, rehabilitation and vocational training is detailed in Division 3.3 section 3.17 and Division 6.2 section 6.5 (1-3) of the Act.

Recovery approach

3.5 People respond differently after a motor accident injury. The insurer is to manage claims in a manner that is tailored to the claimant, providing support based on best practice and tailored to their individual circumstances and needs. The insurer should be familiar with the nationally endorsed Clinical Framework for the Delivery of Health Service which sets our five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services:

3.5.1 Measure and demonstrate the effectiveness of the treatment

3.5.2 Adopt a biopsychosocial approach – consider the whole person and their individual circumstances

3.5.3 Empower the injured person to manage their injury




3.5.4 Implement goals focused on optimising function, participation and where applicable, return to work

3.5.5 Base treatment of the best available research evidence

3.6 Consideration for service requests should also include guidelines developed by the authority, for example the:

3.6.1 Whiplash guidelines for the management of acute whiplash-associated disorders for health professionals

3.6.2 Neuropsychological assessment of children and adults with traumatic brain injury guidelines

Screen and assess risk of poor recovery

3.7 A claimant must be screened for risk of poor recovery within three business days of lodgement of their claim. The outcome of this screening must be recorded on the claimant’s file.

3.8 Where a claimant is identified to be at or above a medium risk of poor recovery, the insurer must take action to support the claimant through to the appropriate internal claims management stream. The insurer should refer the claimant for a comprehensive assessment to determine the relevant course of treatment. The outcome of this assessment must be integrated into the claimant’s recovery plan.

3.9 The insurer should regularly engage with the claimant and stakeholders involved to review progress and continue to assess risk of poor recovery. The outcome must be recorded on the claimants file and integrated into the recovery plan.

3.10 Insurers should contact a claimant directly to deal with the claimant’s claim, regardless of whether the claimant is legally represented. However, an insurer is not to contact a legally represented claimant in regards to a dispute unless the Act or Guidelines authorises that contact.

Recovery plan

3.11 All claimants must have a tailored recovery plan. The recovery plan may simply monitor treatment progress; it does not necessarily incorporate return to work support or vocational retraining where full return to work has been achieved. The recovery plan must be established, in consultation with the:

3.11.1 claimant who has an obligation under the Act to minimise loss and participate in reasonable and necessary treatment and care and rehabilitation

3.11.2 claimant’s treating doctor

3.11.3 claimant’s employer, where rehabilitation at work is applicable and where they elect to be a part of recovery, and to the maximum extent that their cooperation and participation allows.

3.12 An insurer must, as far as possible, ensure that any vocational support provided or arranged under an individual’s recovery plan is reasonable and necessary to support a return to work.

3.13 An insurer must fulfil their obligations under any recovery plan they have established for a claimant.


3.14 The recovery plan must be:

3.14.1 completed within 28 days of the claim being made

3.14.2 reviewed no less than at 12 weekly intervals or as pertinent changes occur.

3.15 Where a claimant fails to comply with a recovery plan that has been developed and provided to them, the insurer must provide notice to the claimant that weekly payments may be suspended during the period of non-compliance in terms of Division 3.3 section 2.17(2) of the Act. See Division 3.3 section 2.19 of the Act for required notice periods when discontinuing weekly payments.

3.16 A recovery plan is not required where a claimant is performing their pre-injury duties, usual activities, where the claim is denied or where a claimant has returned to their pre-injury duties and activities within 28 calendar days of the claim being made.

Development of a recovery plan

3.17 When developing a personalised recovery plan for a claimant, an insurer is to consider the following:

3.17.1 the nature of the injury and the likely process of recovery

3.17.2 treatment and rehabilitation needs, including the likelihood that treatment or rehabilitation will enhance earning capacity and any temporary incapacity that may result from treatment

3.17.3 any employment engaged in by the claimant after the motor accident

3.17.4 any certificate of fitness provided by the claimant

3.17.5 the claimant’s training, skills and experience

3.17.6 the age of the person

3.17.7 accessibility of services within the claimant’s residential area.

Minimum requirements in recovery plans

3.18 Within the recovery plan that is sent to both the claimant and their nominated doctor the following details must be included at a minimum:

3.18.1 name of claimant

3.18.2 claim number

3.18.3 date of injury

3.18.4 current treatment being undertaken

3.18.5 future treatment expected to be undertaken

3.18.6 current fitness for work and/or usual activities

3.18.7 expected fitness for work and/or usual activities with milestones

3.18.8 obligations of the claimant

3.18.9 consequences for the claimant if they do not adhere to the recovery plan




3.18.10 contact details of the insurer and SIRA

3.18.11 what action the claimant can take if they disagree with the recovery plan.

Obligations of the claimant 3.19 The claimant must agree to participate in the recovery plan and must, when

requested to do so by the insurer, nominate a treating medical practitioner who is prepared to participate in the development of and in the arrangements under, the Plan.

3.20 The Insurer is to advise the claimant that they may change their nominated treating practitioner, if required due to, for example the claimant moving house or the doctor leaving the area. The claimant needs to advise the insurer of any change and the reasons for the change.

3.21 A medical practice may be nominated as a treating medical practitioner for the purposes of a recovery plan. Such a nomination operates as a nomination of the medical practitioners of the practice who may treat the claimant from time to time. A reference in this section to the nominated treating doctor is a reference to the medical practitioners of the practice.

3.22 The claimant must authorise their nominated treating medical practitioners to provide relevant information to the insurer for the purposes of a recovery plan.

Limits on treatment and care expenses

3.23 In terms of section 2.31 (4) of the Act – The limit is applicable AMA rates.

Payment for treatment

3.24 A claimant who has been identified as requiring treatment, rehabilitation and attendant care services must be referred to an appropriate treatment provider (including vocational provider, if appropriate) as soon as possible (within 10 calendar days of the identification) with their agreement.

Approving requests

3.25 Where the insurer approves payment of the claimant’s treatment, rehabilitation and attendant care expenses, it will:

3.25.1 advise the claimant and service provider in writing as soon as possible but within 10 calendar days of receipt of a request

3.25.2 state the costs the insurer has agreed to meet

3.25.3 pay the account as soon as possible but within 20 calendar days of receipt of an invoice or expense.

3.26 The insurer will advise the claimant of the insurer’s obligation to pay, and make payment of, all reasonable and necessary costs and expenses, including travel expenses to attend treatment, rehabilitation services or assessments and for attendance at an assessment by Medical Assessment Service as soon as possible



(no later than 20 calendar days of receipt of the account or request for reimbursement).

Treatment and care beyond 26 weeks for those with minor injuries

3.27 Specific treatment and care that will improve recovery of a minor injury after 26 weeks, may be authorised as outlined in the Soft tissue and minor psychological or psychiatric injury guidelines – part 3: Treatment and care incurred more than 26 weeks after the motor accident.

Verify expenses

3.28 Verification of expenses is detailed in Division 3.4 section 3.27 of the Act. Expenses are to be verified through invoices for treatment and care. The invoice should include:

3.28.1 the claimant's first and last name

3.28.2 the claim number allocated by the insurer

3.28.3 payee details

3.28.4 AHPRA number, if relevant

3.28.5 Australian Business Number (ABN) of the provider

3.28.6 name of the medical practitioner or service provider

3.28.7 date of the service (date of invoice must be on the day of or after last date of service listed on the invoice)

3.28.8 payment classification code from the authority or AMA item number, where applicable

3.28.9 service cost for each payment classification code from the authority or AMA item number where applicable, and

3.28.10 service duration where applicable.

3.29 Note: These provisions do not apply to reimbursement for treatment and/or expenses to the claimant. These expenses should be reimbursed to the claimant by the insurer on provision of a receipt confirming the expenses incurred, where pre-approval has been provided by the insurer and/or they are reasonable and necessary. Insurers should request details of regular service providers to establish direct billing and reimbursement between insurer and provider to reduce the burden on the claimant financially.



Assessment of degree of permanent impairment 4.1 Refer to the permanent impairment section of these Guidelines. (Insert clause

reference)

Damages

Making a claim for damages

4.2 A notice of a claim for damages is made once an insurer receives a signed CTP Green Slip Claim Form – Application for benefits under common law (Tab D) and all information required within the CTP Green Slip Claim Form – Application for personal injury benefits (Tab A) has been received by the insurer.

Liability decisions in a claim for damages

4.3 After making a claim for damages an insurer must determine liability as expeditiously as possible, but within three months of the date of the claim made as per Division 6.4 section 7.20 of the Act. The notice must be clearly identified as a Liability notice – Claim for damages and must include:

4.3.1 the decision

4.3.2 the consequences of the decision, including any effects on the claimant’s entitlements and when it will take effect

4.3.3 the reasons for the decision

4.3.4 a list and copies (where not previously provided) of the information and documents considered in the making of the decisions whether or not the information or document supports the reasons for the decision

4.3.5 how the decision can be reviewed

4.3.6 that the claimant can get helpance from the insurer or the authority and their contact details.

Where liability is not wholly admitted for damages

4.4 Where liability is not wholly admitted, the notice must give sufficient detail to the claimant to enable them to understand the extent to which liability is accepted and/or the elements of liability that are admitted. The notice must also refer to the reasons for that decision and the nature and source of the evidence that supports those reasons.



Claimant failure to provide relevant particulars – damages claim

4.5 Under Division 6.4 section 6.26 of the Act, when claimants have not provided particulars of their claim within two years and six months, insurers may send a direction to produce particulars form for the claimant to complete. (Tab E). [FORM TO BE ATTACHED]

Late claims for damages- specific requirements

4.6 On receipt of the claimant’s explanation for lodging a late claim, the insurer will write to the claimant as soon as possible if it does not accept that the explanation is full and satisfactory for the delay. The insurer must detail the reasons for its decision, including advising the claimant of the grounds upon which is does not consider the explanation to be full or satisfactory or both.

4.7 If the insurer takes action on the late lodgement, it will request a full and satisfactory explanation as soon as possible after receiving the claim.

4.8 The insurer will not delay its investigation of each of the elements of liability on the basis that the claim is lodged late.

4.9 When exercising discretion in relation to late claims (received by the insurer more than three years from the date of accident or nominal defendant claims received by the authority more than three years from the date of accident), insurers should act reasonably and where liable pay claims without relying on technical defences or minor procedural defects or irregularities.

Non-economic loss- specific requirements

4.10 The insurer is to make decisions based on all the available documents, consistent with the facts and in accordance with the law. For example, conceding an entitlement to non-economic loss when the insurer is in possession of health service provider examination reports that indicate that a claimant’s whole person impairment is greater than 10 per cent. The insurer will clearly indicate to the claimant, regardless of whether or not the claimant claims to be entitled to non-economic loss, that:

4.10.1 the insurer has determined whether or not the claimant is entitled to non-economic loss, or

4.10.2 when a claimant claims to be entitled to non-economic loss but the insurer disagrees, the insurer will clearly explain the reasons and detail any medical information considered in the course of making its decision that the injured person’s degree of permanent impairment is not greater than 10 per cent

4.10.3 the explanation must be sufficient to enable the injured person to make an informed decision about whether to accept the insurer’s decision

4.10.4 where a claimant has sufficiently recovered to enable the claim to be quantified, and the insurer is unable to determine whether the claimant’s degree of permanent impairment is greater than 10 per cent, the insurer will refer the matter to DRS for assessment.



Reasonable offers of settlement and finalising claims

4.11 In acting to resolve the claim justly and expeditiously, insurers should continually review and identify whether the claimant who is eligible for economic loss and/or non-economic loss is sufficiently recovered to enable quantification of the claim, and if so, make a reasonable offer of settlement. A reasonable offer is one that is based on the facts and evidence and is reflective of the injuries and the losses the injured person has suffered as a consequence of the motor vehicle accident.

4.12 The insurer will make a reasonable offer of settlement to the claimant required under the Act, unless the insurer wholly denies liability for the claim. The settlement must be recorded on the claim file.

4.13 The insurer’s initial and final offer of settlement will:

4.13.1 be set out in writing to the claimant (and copied to their legal representative where the claimant is represented)

4.13.2 list amounts (including zero) offered for economic loss and non-economic loss separately or include a method for determining an amount of damages

4.13.3 include details necessary to determine the extent to which liability is admitted where the insurer admits liability for only part of the claim

4.13.4 where applicable, identify as a separate amount any allowance for the claimant’s legal costs and disbursements

4.13.5 where applicable, identify any deductions that have been made or are likely to be made and how they have been determined or calculated

4.13.6 include a reference to the insurer’s duty under the Act to make offer of settlement on a claim for damages’

4.14 A claim for damages cannot be settled until approved by the Dispute Resolution Service, unless the claimant is legally represented. Where the claimant is not legally represented, the insurer must proactively approach the Dispute Resolution Service to have the settlement approved.

Confirming payment of a settlement amount

4.15 When a claim for damages settles the insurer must notify the claimant confirming the total settlement amount, who the payment has been made to, the method of payment (for example, cheque or EFT) and the date the payment was made. If the claimant has engaged legal representation then the correspondence must also be sent to them.

Nominal defendant – due inquiry and search 5.1 Claims against the nominal defendant cannot be made unless due inquiry and

search has been made to establish the identity of the motor vehicle. The insurer


managing a nominal defendant claim will, regarding a motor vehicle that is unidentified, explain to the claimant in writing of the requirement for the claimant to make due inquiry and search to ascertain the identity of the vehicle alleged to have been at fault in the accident.

5.2 The insurer will promptly advise the claimant in writing whether the claimant has, in the insurer’s view, satisfied the requirement for due inquiry and search.

5.3 An insurer’s decision is to be based on all available information and documentation and be consistent with the facts. Where the insurer alleges that the requirement has not been met, the insurer must include sufficiently detailed written reasons for its decision and details of the deficiency and manner by which the requirement could be satisfied by the claimant.

Investigations

5.4 The insurer should always consider whether investigations are required in the first instance, and if so, ensure that such investigations are appropriate with respect to the issues arising in the claim.

5.5 The insurer will promptly investigate liability for a claim by requesting information and documents about the claim in a timely manner, and regularly following up any requests.

Medical investigations

5.6 A medical examination can be a stressful experience for a claimant; a joint assessment may help in minimising disputes and expediting a claim towards finalisation.

5.7 A joint medical assessment is when the claimant and insurer agree on a relevant and appropriately qualified medical practitioner to assess the claimant’s injury or a specific issue which requires a specialist opinion and the claimant understands the reason why the medical assessment is being arranged. The instruction letter to the joint medico-legal assessor must clearly state that:

5.7.1 it is a joint assessment

5.7.2 the report must be sent to both parties upon completion

5.7.3 no supplementary reports can be requested unless agreed by both parties and must be provided to both parties by the specialist upon completion.

5.8 The insurer will meet the cost of these assessments.

5.9 Insurers and insurers’ agents handling claims should also note that their appointed investigators and medical assessors are expected to abide by these Guidelines.

5.10 In circumstances where a joint medical assessment report is obtained the insurer must still give the treating medical practitioner’s opinion appropriate weight. The insurer must always consider all medical information available during the decision making process.


Surveillance investigations

5.11 The insurer will conduct surveillance of the claimant only when there is evidence to indicate that the claimant is exaggerating an aspect of the claim or providing misleading information or documents in relation to a claim or where the insurer reasonably believes that the claim is inconsistent with information or documents in the insurer’s possession regarding the circumstances of the accident or medical evidence.

5.12 The insurer will only conduct surveillance in places regarded as public or where the claimant, whilst on private property, is observable by members of the public going about their ordinary daily activities.

5.13 The investigator acting on behalf of the insurer must not actively interfere with the claimant’s activities whilst under observation or interact with them so as to have an impact on their activities.

5.14 The insurer or investigator acting on behalf of the insurer will not engage in any acts of inducement, entrapment or trespass when carrying out factual investigations and/or surveillance activities. Inducement or entrapment can include social media activities such as sending friend requests with the intention to induce, entrap or deceive.

5.15 The insurer will be sensitive to the privacy rights of children, and take reasonable action to avoid unnecessary video surveillance of children, and where possible hide images of children in reports which contain still photographs of children.

5.16 The insurer will take reasonable action to avoid unnecessary video surveillance of children when undertaking surveillance of a claimant. Persons who are under the age of 18 years are regarded as children.

5.17 Where the insurer sends surveillance material to a third party, it will inform that party about confidentiality and relevant privacy obligations.

[THE FOLLOWING INFORMATION IN THE CLAIMS GUIDELINES WILL BE COMBINED WITH MARKET PRACTICE GUIDELINES IN THE NEAR FUTURE ]

Complaints, reviews and disputes handling 6.1 A robust complaint handling process provides the complainant with confidence

they are heard, their feedback is taken seriously and that insurers are accountable for their actions.

6.2 The insurer must have a documented internal complaint and review procedure, the terms of which must be set out in the insurer’s business plan.

6.3 The insurer’s complaint and review procedure must be readily accessible to the public, including publication on the insurer’s website, and provided upon request.

6.4 An insurer who receives a complaint, request for review or dispute (whether verbal or in writing) must handle it in accordance with the documented procedure.

6.5 At a minimum an insurer is required to:


6.5.1 acknowledge a complaint, request for review or dispute in writing and provide the claimant with a copy of the insurer’s procedures and the details of the representative of the insurer handling the complaint, review or dispute as soon as possible but within five calendar days from the receipt of the complaint or dispute

6.5.2 provide the complainant with the opportunity of having the complaint considered by a more senior representative of the insurer independent of the original decision maker, and

6.5.3 provide written reasons for a decision in relation to the complaint and information on the availability of external complaint or dispute resolution handling bodies (including the authority) in the event that the complainant is dissatisfied with the insurer’s decision or procedures.

6.6 The insurer will keep a copy of complaints on the relevant claim files, including its response and written reasons and will provide data on complaints, review requests and disputes including this information to the authority, in the manner requested, from time to time.

6.7 The insurer will cooperate fully with the authority, in respect of any complaint, review request or dispute.

Information and data integrity 7.1 Information and data integrity is critical to the scheme and to demonstrating

insurer performance. Accurate and complete information promotes the credibility and accountability of the scheme and those operating within it.

7.2 At the direction of the authority, an insurer will provide timely, accurate and complete information, including but not limited to:

7.2.1 insurer claims manuals, policies and procedure documents including updates as they occur

7.2.2 claimant information packs/brochures

7.2.3 standard letter templates

7.2.4 self-audit results, including quality assurance (QA) reporting

7.2.5 complaints received by the insurer about its handling of claims

7.2.6 claimant survey results

7.2.7 training plans and logs, and/ or data breaches that affect the privacy of the claimant or their family.

7.3 An insurer will:

7.3.1 code the claimant’s injuries by using appropriately trained coders applying the Abbreviated Injury Scale (AIS) 2005 Revision (or as otherwise prescribed by the authority) and claims in accordance with the authority’s Motor Accident Insurance Regulation Injury Coding Guidelines and agreed time frames;


7.3.2 provide up to date and accurate claims data to the Motor Accidents Claims Register, in accordance with the Act and the Claims Register Coding Manual, as amended, or as otherwise required by the authority, and

7.3.3 maintain consistency between information on the claim file and data submitted to the claims register, and record any changes in accordance with the claims register coding manual, as amended.

7.4 Insurers must comply with any Authority requirements for data exchange and centralised claim notification. Insurers must participate in online claims submission as determined by the authority.

Insurer business plans 8.1 A business plan describes the manner in which the insurer conducts its claims

handling operations. It includes detailed information on how the insurer will ensure that its claims operations are consistent with these Guidelines, and in particular how it will satisfy the principles, standards and requirements.

8.2 Specific requirements

8.3 On a request of the authority and in terms Division 9.2 section 9.18 of the Act an insurer must prepare a business plan.

8.4 The insurer’s business plan may, at the direction of the authority, include such information as:

8.4.1 details of the insurer’s claims handling operations

8.4.2 how the insurer (and its agents) will comply with the Act, principles, standards and requirements in the Guidelines

8.4.3 performance targets

8.4.4 information regarding how the insurer will monitor and measure adherence (including that of any agent of the insurer) to the Guidelines

8.4.5 details of the insurer’s claims handling expenses

8.4.6 systems in place to support compliance.

8.5 Insurer business plans, required under Division 9.2 section 9.18 of the Act, are to outline how insurers will comply with this requirement.


https://legislation.nsw.gov.au/%7E/view/act/2017/10/part9/div9.2/sec9.18

https://legislation.nsw.gov.au/%7E/view/act/2017/10/part9/div9.2/sec9.18

Part D: Dispute resolution

Part D: Dispute resolution .............................................................................................................................. 46

1. Preliminary (Division 7.1) ............................................................................................................................. 48

Explanatory note ................................................................................................................................... 48

Introduction and interpretation ....................................................................................................... 49

Definitions ................................................................................................................................................ 49

Obligations and duties ......................................................................................................................... 51

2. Insurer internal review (Division 7.3) ................................................................................................... 54

Guideline powers ................................................................................................................................... 54

Internal review matters ....................................................................................................................... 54

Requesting an internal review .......................................................................................................... 59

The internal review ............................................................................................................................... 63

3. Dispute Resolution Service (Division 7.2) ......................................................................................... 65

Establishment & Jurisdiction ............................................................................................................. 65

Objects ...................................................................................................................................................... 66

Lodging applications and replies .................................................................................................... 68

Documentation and other supporting material ......................................................................... 73

DRS electronic dispute management (EDM) system .............................................................. 76

Managing applications made to DRS ............................................................................................ 77

Publication of Decisions ..................................................................................................................... 78

4. Merit review (Division 7.4) ........................................................................................................................ 79

Guideline Powers ................................................................................................................................... 79

Merit review matters ............................................................................................................................ 79

Applying for a merit review ..............................................................................................................80

Replying to a merit review application ......................................................................................... 82

The Merit Review ................................................................................................................................... 85

Review of a single merit review by a review panel .................................................................. 88

5. Medical assessment (Division 7.5) ........................................................................................................ 92

Guideline Powers ................................................................................................................................... 92

Medical assessment matters ............................................................................................................. 92

Requesting a medical assessment .................................................................................................. 94

Replying to a medical assessment application .......................................................................... 95

The medical assessment ..................................................................................................................... 98

Permanent Impairment ..................................................................................................................... 100


Treatment and care ............................................................................................................................. 101

Further medical assessment ............................................................................................................ 101

Medical assessor’s certificates and reasons .............................................................................. 103

Review of a single medical assessment by a review panel ................................................. 104

Costs of attending medical assessments ................................................................................... 109

6. Claims assessment (Division 7.6) ........................................................................................................ 109

Guideline Powers ................................................................................................................................. 109

Damages Settlement Approval ...................................................................................................... 109

Miscellaneous claims assessment .................................................................................................. 114

Assessment of claims for damages ................................................................................................ 121

Further assessments of claims for damages ............................................................................. 132

Index 133

Glossary ................................................................................................................................................................ 134

Division 7.3 (Internal Review), Division 7.4 (Merit Review), Division 7.5 (Medical assessment) and Division 7.6 (Claims assessment) under Part 7 Motor Accident Injuries Act 2017.

Dispute resolution

Guidelines for and with respect to internal review by insurers and dispute resolution by the State Insurance Regulatory Authority’s Dispute Resolution Service (DRS) including determination of merit review matters, medical assessment matters, miscellaneous claims assessment matters, and claims assessment matters.


http://www.legislation.nsw.gov.au/%7E/view/act/2017/10

http://www.legislation.nsw.gov.au/%7E/view/act/2017/10

1. Preliminary (Division 7.1)

Explanatory note

1.1 This Part D of the motor accident guidelines (the dispute resolution guidelines) are made under those sections of the Motor Accidents Injuries Act 2017 (the Act) relating to dispute resolution in the NSW motor accident injuries (MAI) scheme, including internal reviews by insurers and the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (the authority).

1.2 DRS has been established by the authority under Division 7.2, section 7.2 of the Act, as a dispute resolution service which is independent of insurers and claimants, to resolve disputes as they arise during the course of a claim.

1.3 DRS is delivered by the Dispute Resolution Services Division, a separate Division of SIRA, which is independent from the Motor Accident Insurance Regulation (MAIR) and Workers & Home Building Compensation Regulation (WHBCR) Divisions of SIRA.

1.4 These dispute resolution guidelines are to instruct, guide, support and assist claimants and their representatives, insurers and their representatives, members of the legal and medical professions, officers of the DRS, dispute resolution officers, proper officers, DRS merit reviewers, DRS medical assessors, DRS claims assessors and the DRS principal claims assessor to resolve disputes arising in MAI scheme claims in accordance with the objects of the Act and the objects of DRS.

1.5 These dispute resolution guidelines apply to all MAI scheme claims arising from accidents occurring on or after 1 December 2017.

1.6 These dispute resolution guidelines have the force of a statutory rule and should be read in conjunction with the Act and regulations.

1.7 In support of these dispute resolution guidelines, the authority has published on its website at www.sira.nsw.gov.au a suite of supporting information and explanatory materials to assist and inform claimants, insurers and their representatives on the operations of these dispute resolution guidelines and dispute resolution in the MAI scheme.

1.8 Questions about these dispute resolution guidelines should be directed to the Executive Director, Dispute Resolution Services.


https://www.legislation.nsw.gov.au/%23/view/act/2017/10/part1


http://www.sira.nsw.gov.au/

Introduction and interpretation

What is the power, status and purpose of these dispute resolution guidelines?

1.9 The power to make these dispute resolution guidelines comes from the Act including Part 7, Division 7.3 (Internal review), Division 7.4 (Merit review), Division 7.5 (Medical assessment) and Division 7.6 (Claims assessment).

1.10 These dispute resolution guidelines have the force of a statutory rule and they are to be read in conjunction with the Act and the regulations.

1.11 The purpose of these dispute resolution guidelines is to:

1.11.1 give effect to legislative provisions with respect to dispute resolution in the MAI scheme, including internal reviews by insurers and the DRS of the authority

1.11.2 instruct, guide, support and assist claimants and their representatives, insurers and their representatives, members of the legal and medical professions, officers of DRS, merit reviewers, medical assessors and claims assessors to resolve disputes arising in claims, in accordance with the objects of the Act and the objects of DRS, in a way that is timely, fair, cost effective, accessible, transparent and professional.

Definitions

What definitions apply in these dispute resolution guidelines?

1.12 The definitions of terms in this clause apply to these dispute resolution guidelines to the extent that these terms may not otherwise defined in the Act. The terms used in these dispute resolution guidelines have the following meanings:

1.12.1 Act – Motor Accident Injuries Act 2017 as amended from time to time.

1.12.2 Applicant – The party that initiates the referral of a claim or dispute in connection with a claim.

1.12.3 Application – The way a party refers a merit review matter, medical assessment matter, miscellaneous claims assessment matter and claims assessment matter.

1.12.4 Authority –The State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015.

1.12.5 advisory service – An advisory service under section 7.49 of the Act to assist claimants in connection with their claims and with the dispute resolution procedures under Part 7 of the Act.

1.12.6 claims assessor – A person appointed by the authority under Part 7 Division 7.2 as a DRS claims assessor.

1.12.7 Claims assessment matter – A matter declared by Schedule 2, clause 4 of the Act to be a claims assessment matter.

1.12.8 Claims Guidelines – Part C Claims of this document, the motor accident guidelines, which are made under section 6.1 of the Act, and which make








https://www.legislation.nsw.gov.au/%7E/view/act/2015/19


provision with respect to the manner in which insurers and those acting you on their behalf are to deal with claims.

1.12.9 Decision maker – A, DRS merit reviewer, DRS claims assessor, DRS principal claims assessor, DRS proper officer, or DRS medical assessor.

1.12.10 Dispute resolution guidelines – This document, being Part D Dispute Resolution of the motor accident guidelines.

1.12.11 DRO – dispute resolution officer – A Dispute Resolution Service staff member.

1.12.12 DRS – The Dispute Resolution Service of the authority.

1.12.13 Internal review – A review of a decision by the insurer under Division 7.3 (Internal review of insurer’s decisions).

1.12.14 Internal reviewer – An insurer’s internal reviewer.

1.12.15 MAI scheme – The NSW Motor Accident Injuries scheme, created in the Motor Accident Injuries Act 2017.

1.12.16 Matters – A merit review matter, medical assessment matter, miscellaneous claims assessment matter or a claims assessment matter.

1.12.17 Medical assessment matter – A matter declared by Schedule 2, clause 2 of the Act to be a medical assessment matter.

1.12.18 Medical assessor – A person appointed by the authority under Part 7, Division 7.2 as a DRS medical assessor.

1.12.19 Medical review panel – is comprised of at least two medical assessors who have been appointed by the authority under section 7.4 of the Act for the purposes of conducting a review of a single medical assessment under section 7.26 of the Act.

1.12.20 Merit review matter – A matter declared by Schedule 2, clause 1 of the Act to be a merit review matter.

1.12.21 Merit review panel – is comprised of at least two merit reviewers who have been appointed by the authority under section 7.4 of the Act for the purposes of conducting a review of a single merit review under section 7.15 of the Act.

1.12.22 Merit reviewer – A person appointed by the authority under Part 7 Division 7.2 as a DRS merit reviewer.

1.12.23 Miscellaneous claims assessment matter – A matter declared Schedule 2, clause 3 of the Act to be a miscellaneous claims assessment matter.

1.12.24 Officer of DRS – A Dispute Resolution Service staff member.

1.12.25 PCA – The principal claims assessor of DRS appointed under Schedule 3 of the Act.

1.12.26 Person under a legal incapacity – includes:

(a) a child under the age of 18 years, and

(b) an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007 and

(c) a person under guardianship within the meaning of the Guardianship Act 1987 and



https://www.legislation.nsw.gov.au/%7E/view/act/2017/10/full



(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009 and

(e) an incommunicate person who has such a physical or mental disability that they are unable to receive communications, or express their will, with respect to their property or affairs.

1.12.27 Proceedings – Any conference or other proceeding held with or before a claims assessor, including any such proceedings at which the parties (or some of them) participate by telephone, closed circuit television or other means.

1.12.28 Proper officer – A proper officer of DRS exercising delegations under the Act.

1.12.29 Regulation – The Motor Accident Injuries Regulation 2017.

1.12.30 Reply – The way a respondent replies to an application.

1.12.31 Respondent – A party who is given an opportunity to respond to an application.

How do the references apply in these dispute resolution guidelines?

1.13 Sections and Parts – A reference in these dispute resolution guidelines to a part X, division Y or section Z is a reference to a part, division or section of the Motor Accident Injuries Act 2017, as amended from time to time, unless otherwise specified.

1.14 Parties – A reference in these dispute resolution guidelines to a party includes multiples of parties, or multiple parties to any application, and includes a reference to any representative of that party unless otherwise specified.

1.15 Days – A reference in these dispute resolution guidelines to a number of days is a reference to a number of calendar days, unless otherwise specified.

Obligations and duties

What are the obligations of the authority?

1.16 The authority is under an obligation to:

1.16.1 establish the DRS, consisting of merit reviewers, medical assessors, claims assessors and staff of the authority, under section 7.2 of the Act

1.16.2 establish an advisory service to assist claimants in connection with their claims and dispute resolution procedures , under Part 7 of the Act, and

1.16.3 exercise the functions of the authority under Division 10.1 of the Act to issue motor accident guidelines, establish DRS, appoint decision makers, and provide an advisory service to assist claimants in connection with claims and with dispute resolution procedures under Part 7.








What are the obligations and duties of the insurer?

1.17 An insurer is obligated to:

1.17.1 further the objects of the Act and the objects of the DRS

1.17.2 comply with their duty to act with good faith under Part 6 Division 6.2 section 6.3 of the Act

1.17.3 comply with their duty to endeavour to resolve a claim as justly and expeditiously as possible under section 6.4 of the Act

1.17.4 act as a model litigant in compliance with the requirements of Part C Claims of these motor accident guidelines (the claims guidelines), while participating in any dispute resolution processes, including complying with any requests or directions made by decision makers.

1.17.5 attempt to identify and narrow any issues in dispute before any application is lodged with DRS and to continue to do so while any application is being considered by DRS, and

1.17.6 comply with the requirements of these dispute resolution guidelines.

What are the obligations and duties of the claimant?

1.18 A claimant is obligated to:

1.18.1 further the objects of the Act and the objects of the DRS

1.18.2 comply with their duty to act with good faith under Part 6 Division 6.2 section 6.3 of the Act

1.18.3 comply with their duty to endeavour to resolve a claim as justly and expeditiously as possible under section 6.4 of the Act

1.18.4 comply with their duty to take all reasonable steps to minimise their loss under section 6.5 of the Act

1.18.5 comply with any requests or directions made by decision makers

1.18.6 attempt to identify and narrow any issues in dispute before any application is lodged with DRS and to continue to do so while any application is being considered by DRS, and

1.18.7 comply with the requirements of these dispute resolution guidelines.

What are the obligations of a representative of a party?

1.19 A representative of a claimant or insurer, is under an obligation to:

1.19.1 act honestly and not mislead the parties, DRS or any decision maker

1.19.2 assist the party they are representing to further the objects of the Act and the objects of DRS

1.19.3 assist the party they are representing to meet their obligations and duties, and

1.19.4 ensure that they do not, by their conduct, cause the party they represent to fail to meet their obligations and duties.





What are the obligations of an advisor from the advisory service?

1.20 An advisor of a claimant from the advisory service, established by the authority under section 7.49 of the Act, is under an obligation to:

1.20.1 assist the claimant, and any representative of the claimant, to further the objects of the Act and the objects of DRS

1.20.2 assist the claimant, and any representative of the claimant, to meet their obligations and duties, and

1.20.3 ensure that they do not, by their conduct, cause the claimant, and any representative of the claimant, to fail to meet their obligations and duties.

What are the obligations of DRS?

1.21 Decision makers of DRS including DRS merit reviewers, DRS medical assessors, DRS claims assessors, the DRS PCA, and DRS proper officers, are under an obligation to:

1.21.1 assist the parties to resolve the issues in dispute referred to them

1.21.2 assist the parties to further the objects of the Act and the objects of DRS

1.21.3 assist the parties to meet their obligations and duties, and

1.21.4 interpret and apply the provisions of these dispute resolution guidelines, in a way that best supports the objects of the Act, and the objects of DRS.

1.22 officers of DRS are under an obligation to:

1.22.1 assist the parties and decision makers to resolve any issues in dispute in the claim

1.22.2 assist the parties and decision makers to further the objects of the Act and the objects of DRS, and

1.22.3 assist the parties, their representatives and decision makers to meet their obligations and duties.

1.23 DRS may provide reports to the authority on the failure of a claimant or insurer to comply with any duty, under Division 6.2 of the Act.



2. Insurer internal review (Division 7.3)

Guideline powers

What is the power to make guidelines about internal reviews?

2.1 These dispute resolution guidelines, in relation to internal reviews by insurers, are made under the Act, including under Division 7.3 sections 7.9(3), (4) and (5) of the Act.

2.2 The regulations may also make provision for, or with respect to, internal reviews by insurers, under Division 7.4 section 7.16 of the Act.

2.3 These dispute resolution guidelines in relation to internal reviews by insurers are also made under section [XXX] of the Regulation.

Motor Accidents Injuries Regulation 2017

x.xx Merit reviews

Insert Regulation provision here

Internal review matters

What insurer decisions can a claimant request be internally reviewed?

2.4 A claimant may request an internal review by the insurer under Division 7.3 section 7.9 of the Act of an insurer’s decision about a merit review matter, medical assessment matter, or a miscellaneous claims assessment matter.

2.5 Merit review matters, medical assessment matters and miscellaneous claims assessment matters are defined in Division 7.1 section 7.1 of the Act.

2.6 Merit review matters are those matters declared by Schedule 2 Jurisdiction of Dispute Resolution Service, clause 1, of the Act to be merit review matters.

Motor Accidents Injuries Act 2017

Schedule 2

1 Merit review matters

The following matters are declared to be merit review matters for the purposes of Part 7:

the amount of statutory benefits that is payable under section 3.4 (Statutory benefits for funeral expenses) or

the amount of statutory benefits that is payable under Division 3.3 (Weekly payments of statutory benefits to injured persons),

b) whether for the purposes of section 3.12 Cessation of weekly payments to other injured persons after maximum weekly payments period) an injured person’s injury is the subject of a pending claim for damages,






c) whether for the purposes of section 3.13 Termination of weekly payments on retiring age) a motor accident that has caused a person’s injury has happened before the person has reached retirement age,

d) the suspension of weekly payments of statutory benefits under section 3.14 Obligations to provide authorisations and medical evidence), 3.15 Requirements for evidence as to fitness for work) or 3.17 Treatment, rehabilitation and vocational training),

e) whether the insurer has given the required period of notice under section 3.19 Notice required before discontinuing or reducing weekly payments) before discontinuing or reducing weekly payments of statutory benefits,

f) whether an amount of statutory benefits is recoverable by the injured person under section 3.19 3) Notice required before discontinuing or reducing weekly payments), and the amount of statutory benefits so recoverable,

g) whether to make a direction for repayment of weekly payments paid, or adjustment of weekly payments of statutory benefits, under section 3.20 Refund of weekly payments paid after return to employment)

h) whether for the purposes of section 3.21 Weekly statutory benefits to persons residing outside Australia) an injured person is or has been residing outside Australia,

whether the insurer is required to vary an amount of a weekly payment of statutory benefits in accordance with section 3.22 Indexation of weekly statutory benefits),

i) whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24 1) a) Entitlement to statutory benefits for treatment and care),

j) whether statutory benefits are payable under section 3.26 Statutory benefits for loss of capacity to provide gratuitous domestic services), and the amount of statutory benefits so payable,

k) whether expenses have been properly verified for the purposes of section 3.27 Verification of expenses),

l) whether for the purposes of section 3.28 Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment and care expenses have been incurred after the expiration of the period during which statutory benefits are payable,

m) whether for the purposes of section 3.28 Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment or care is authorised by the Motor Accident (Guidelines except in circumstances referred to in clause 2c),

n) whether treatment and care expenses have been paid or recovered for the purposes of section 3.29 (No statutory benefits for expenses already compensated),

o) the amount payable for treatment and care or services in accordance with section 3.30 (Payment of hospital, ambulance, medical and other expenses not covered by bulk billing arrangement),


p) whether the cost of treatment and care exceeds any limit imposed by the Motor Accident Guidelines for the purposes of section 3.31 (Limits under Guidelines on statutory benefits for particular treatment and care),

q) whether treatment and care provided to the injured person is treatment and care needs or excluded treatment and care needs to which section 3.32 (No treatment and care statutory benefits for treatment and care needs covered by Lifetime Care and Support Scheme) applies,

r) whether for the purposes of section 3.33 (Treatment and care provided while persons residing outside Australia) treatment and care provided to an injured person has been provided while the person is residing outside Australia,

s) whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 3.34 (Effect of death on entitlement to statutory benefits),

whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 3.35 (No statutory benefits if workers compensation payable) or

whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured) the vehicle was an uninsured vehicle at the time of the motor accident,

t) whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 as applied by section 3.39 (Limitation on statutory benefits in relation to certain mental harm) or 3.40 (Effect of recovery of damages on statutory benefits),

u) whether return to work statutory benefits are payable under section 3.41 (Vocational and return to work support provided by Authority), and the amount of return to work statutory benefits so payable,

v) whether a duty of the claimant or the insurer under section 6.3 (Duty of claimants and insurers to act with good faith), 6.4 (Duty of claimants and insurers to try to resolve claim justly and expeditiously) or 6.5 (Duty of claimants to minimise loss) has been complied with,

w) whether the insurer is entitled to delay the making of an offer of settlement under section 6.22 (Duty of insurer to make offer of settlement on claim for damages),

x) whether for the purposes of section 6.24 (Duty of claimant to co-operate with other party) a request made of the claimant is reasonable or whether the claimant has a reasonable excuse for failing to comply,

y) whether the claimant has provided the insurer with all relevant particulars about a claim in accordance with section 6.25 (Duty of claimant to provide relevant particulars of claim for damages),

z) whether the insurer is entitled to give a direction to the claimant under section 6.26 (Consequences of failure to provide relevant particulars of claim for damages),

whether a claim may be reinstated under section 6.26 (Consequences of failure to provide relevant particulars of claim for damages),


whether a merit review may be referred to a review panel for review under section 7.15 (Review of merit review decision by review panel) and whether a review panel may confirm a decision of a single merit reviewer, or set aside a decision and make a decision in substitution for the decision the review panel set aside,

aa) whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant are reasonable and necessary.

2.7 Medical assessment matters are those matters declared by Schedule 2 Jurisdiction of Dispute Resolution Service, clause 2, of the Act to be medical assessment matters.


Schedule 2

2 Medical assessment matters

The following matters are declared to be medical assessment matters for the purposes of Part 7:

a) the degree of permanent impairment of an injured person that has resulted from an injury caused by a motor accident (including whether the degree of permanent impairment is greater than a particular percentage), under section 7.21 (assessment of degree of permanent impairment) or under section 7.22 (interim assessment of permanent impairment),

b) whether any treatment and care provided to an injured person is reasonable and necessary in the circumstances or relates to an injury caused by a motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care),

c) whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment or care provided to an injured person will improve the recovery of the injured person,

d) the degree of impairment of the earning capacity of an injured person that has resulted from an injury caused by a motor accident,

e) whether an injury is a minor injury for the purposes of the Act.

f) whether a medical dispute referred for assessment may be referred again for assessment under section 7.24 (further medical assessment after initial medical assessment) and the conduct of any resulting further medical assessment,

g) whether a medical assessment by a single medical assessor may be referred to a review panel for review under section 7.26 (review of medical assessment by review panel) and whether a review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned,

h) whether a merit reviewer or Claims Assessor refers a medical assessment matter for assessment for the purposes of the provision of a non-binding


opinion by a medical assessor for the assistance of the merit reviewer or Claims Assessor under section 7.27(Non-binding opinion of medical assessor).

2.8 Miscellaneous claims assessment matters are those matters declared by Schedule 2 Jurisdiction of Dispute Resolution Service, clause 3, of the Act to be miscellaneous claims assessment matters.


Schedule 2 - Jurisdiction of Dispute Resolution Service

3 Miscellaneous claims assessment matters

The following matters are declared to be miscellaneous claims assessment matters for the purposes of Part 7:

(a) whether for the purposes of section 2.30 (Claim against Nominal Defendant where vehicle not identified) there has been due inquiry and search to establish the identity of a motor vehicle,

(b) whether for the purposes of section 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) the death of or injury to a person has resulted from a motor accident in this State,

(c) which insurer is the insurer of the at-fault motor vehicle for the purposes of section 3.3 (Determination of relevant insurer),

(d) whether for the purposes of section 3.11 (Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks) the motor accident concerned was caused by the fault of another person,

(e) whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) or 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured) the motor accident was caused mostly by the fault of the injured person,

(f) whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 3.37 (No statutory benefits payable to injured person who commits serious driving offence),

(g) whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 (Reduction of weekly statutory benefits after 6 months for contributory negligence),

(h) whether for the purposes of Part 6 (Motor accident claims) the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay,

(i) whether for the purposes of section 6.9 (Compliance with verification requirements—claim for statutory benefits) or 6.10 (Compliance with verification requirements—claim for damages) the motor accident verification requirements have been complied with,

(j) whether notice of a claim has been given in accordance with section 6.12 (Notice of claims for statutory benefits or damages),


(k) whether the insurer is entitled to refuse payment of weekly payments of statutory benefits in accordance with section 6.13 (Time for making of claims for statutory benefits),

(l) whether a late claim may be made in accordance with section 6.14 (Time for making of claims for damages),

(m) whether a claim may be rejected for non-compliance with section 6.15 (How notice of claims given).

Requesting an internal review

How long does a claimant have to request an internal review?

2.9 These guidelines set the time limit for a claimant to make a request for an internal review and for insurers to extend time for an application for internal review under Division 7.3 sections 7.9(3b) of the Act.

2.10 A claimant may make a request for an internal review of a decision within 28 days of receiving notice of the decision from the insurer.

2.11 If a claimant requests an internal review more than 28 days after receiving notice of the decision from the insurer, the insurer does not have to accept the application. This does not entitle the claimant to proceed to seek a merit review as the dispute has not first been the subject of an internal review by the insurer.

2.12 An insurer may exercise discretion to accept a late request for an internal review, consistent with section 1.3 of the Act, if the insurer believes the exercise of that discretion would best promote the objects of the Act in all the circumstances of the review and the claim.

What is the effect of requesting an internal review?

2.13 The fact that an internal review has been requested does not stay or stop the effect of the original decision under review, and action may continue to be taken based on that decision while any internal review is under consideration, under Division 7.3 section 7.9(7) of the Act.

How does a claimant request an internal review?

2.14 These dispute resolution guidelines set out how a claimant may make a request for internal review under Division 7.3 sections 7.9(3a) of the Act.

2.15 A claimant may request an internal review by the insurer by:

2.15.1 application form, by completing the approved form for requesting an internal review by the insurer and delivering it to the insurer by post, email, facsimile or in person





2.15.2 online application process, by completing an approved online application process for requesting an internal review by the insurer, to which the provisions of the Electronic Transactions Act 2000 apply

2.15.3 letter, by contacting the insurer by letter and requesting an internal review, which the insurer will confirm in writing to the claimant, confirming the nature and extent of the application for internal review, or

2.15.4 telephone, by contacting the insurer by telephone and requesting an internal review, which the insurer will confirm in writing to the claimant, confirming the nature and extent of the application for internal review.

What must an internal review request include?

2.16 A request for internal review of an insurer’s decision must include the following information:

2.16.1 all requirements specified in any approved application form for making a request for an internal review

2.16.2 all requirements specified in any approved online application process for making a request for an internal review, and

2.16.3 in any case, details of:

2.16.3.1 the decision of the insurer that is being referred for internal review

2.16.3.2 the alternative decision sought in the internal review

2.16.3.3 issues under review – the elements of the original decision that the claimant wishes to be reviewed

2.16.3.4 the reasons the claimant believes the decision should be changed, and

2.16.3.5 any additional documentation or materials that the claimant considers relevant to a review of the decision.

Can the claimant withdraw a request for an internal review?

2.17 A claimant may withdraw a request for internal review of a decision by letter, facsimile, telephone, email, or in person at any time before the insurer sends notification of the internal review decision to the claimant. The insurer will confirm the withdrawal of the request for internal review in writing to the claimant.

What happens once the insurer receives an internal review application?

2.18 The insurer will acknowledge receipt of the application for internal review by notification to the claimant, to be sent within two working days of receiving the application.



2.19 The notification is to be in writing and is to be delivered either by post, email, online electronic delivery, or a combination of these methods, depending on the claimant’s preference.

The notification from the insurer must advise the claimant whether the insurer accepts that it has power to conduct an internal review of the decision, or alternatively whether the insurer does not accept it has the power to conduct an internal review.

2.20 If the insurer accepts that it has the power to conduct an internal review of the decision, the notification must include:

2.20.1 key dates – the date that the application was received and the date the internal review decision is due to be issued

2.20.2 issues under review – the elements of the original decision that the insurer understands are under review

2.20.3 the internal reviewer – the person allocated as the internal reviewer to conduct the internal review

2.20.4 additional information – any additional relevant documents or information required from the claimant for the internal review, and any additional information or documentation that the insurer has which is relevant to the internal review that has not previously been provided to the claimant, and

2.20.5 how to make contact – how the claimant can contact the insurer about the internal review, and how the claimant can contact the advisory service about the internal review.

2.21 If the insurer does not accept it has the power to conduct an internal review, the notification must include:

2.21.1 key dates – the date that the application was received

2.21.2 reasons for decision – the brief reasons for the decision to decline to conduct the review

2.21.3 the internal reviewer – the person who decided to decline to conduct the review

2.21.4 how to make contact – how the claimant can contact the insurer about the decision to decline to conduct the review, and how the claimant can contact the advisory service about the decision, and

2.21.5 next steps for the claimant – the options available to the claimant if they disagree with the decision.

2.22 If the insurer does not accept it has the power to conduct an internal review, this does not entitle the claimant to proceed to refer the dispute to DRS as the dispute has not first been the subject of an internal review by the insurer and the insurer has not declined to conduct a review.


The internal review process

Claimant receives Insurer's decision

Claimant requests Internal Review

Insurer conducts Internal Review

Claimant receives Internal Review

The claimant receives the

insurers original claims decision

The claimant makes an internal review application

within 28 days of the insurers decision

The insurers Internal Reviewer conducts the

internal review and makes a decision

The claimant receives the insurers internal review

decision and reasons within 14 days of the application


The internal review

Who will conduct the internal review?

2.23 These dispute resolution guidelines set out details of individuals who may or may not conduct an internal review under Division 7.3 section 7.9(3c) of the Act.

2.24 The individual appointed by the insurer as the internal reviewer to conduct the internal review:

2.24.1 must be someone who has the required skills, experience, knowledge, training, capacity and capability to conduct the internal review in accordance with the objects of the Act, the obligations and duties established in these dispute resolution guidelines, and the claims handling principles established in the claims handling guidelines, and

2.24.2 must not be someone who has been involved in making or advising on the initial insurer’s decision, who has previously managed any aspect of the claim, or who the initial decision maker reports to or manages directly.

How is the internal review conducted?

2.25 These dispute resolution guidelines make provision for the way an internal review is to be conducted under Division 7.3 section 7.9(3d) of the Act.

2.26 The internal review must be conducted in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular internal review, which may include undertaking the review on the papers, using teleconferences, videoconferences, or face to face conferences as appropriate.

2.27 The internal reviewer may determine the internal review procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues under review in such manner as the internal reviewer thinks fit.

Can the internal reviewer consider new information?

2.28 The internal reviewer may consider information that was not provided before the decision being reviewed was made, under Division 7.3 section 7.9(6) of the Act, and the insurer must provide any such information to the claimant if it has not already been provided to the claimant.

2.29 The insurer must ensure that any information considered that was not provided before the decision being reviewed was made is provided to the claimant who is to be given the opportunity to respond.

Can the internal reviewer request information from the claimant?

2.30 The internal reviewer may reasonably request information from the claimant for the purposes of the internal review, which the claimant must provide, under Division 7.3 section 7.9(2) of the Act.






2.31 If the claimant does not provide the insurer with the information reasonably requested, the insurer may decline to conduct a review.

How will the internal reviewer determine the application?

2.32 In determining an internal review application, the internal reviewer is to review the matter on the merits, and make their decision having regard to the material before the reviewer, including the relevant factual material and applicable law.

What decisions may the internal reviewer make?

2.33 In determining a merit review application, the internal reviewer may decide to:

2.33.1 affirm the original decision

2.33.2 vary the original decision or

2.33.3 set aside the original decision and make a decision in substitution for the original decision.

What does the internal reviewer provide to the parties?

2.34 The internal reviewer is to issue the claimant with a certificate as to the decision including a brief statement of reasons for the decision.

When will the internal review decision be issued?

2.35 The insurer is to notify the claimant of the results of the internal review within 14 days after the insurer received the request for the review, under Division 7.3 section 7.9(4) of the Act, unless the circumstances in clause 2.36 of these dispute resolution guidelines apply to allow a longer period.

2.36 The circumstances in which an insurer has a longer period, Division 7.3 under section 7.9(5) of the Act, to complete and notify the results of an internal review are:

2.36.1 additional claimant information provided after application – where the claimant provides, at some point after the application for internal review was lodged, new information of their own or at the insurers request that is relevant to the issues under review, an additional period of up to 4 days after the information is provided is allowed, and

2.36.2 the maximum period – in any case, including any longer periods above, shall be no more than 28 days after the claimants request for the insurer to complete and notify the results of the internal review.




What is the effect of the internal review decision?

2.37 The internal review decision of the insurer is binding on the insurer and should be applied and given effect to by the insurer as quickly as is practicable, in accordance with the insurer’s responsibilities under the Claims guideline principles.

2.38 A claimant who has received an internal review decision of an insurer may seek to refer the issues under review to the DRS for either a merit review of a merit review matter, a medical assessment of a medical assessment matter, or a miscellaneous claims assessment of a miscellaneous claims assessment matter.

What information must the insurer provide the claimant?

2.39 In notifying the claimant of the results of the internal review, the insurer is to provide the claimant with:

2.39.1 the internal reviewers certificate including brief reasons for the decision

2.39.2 details of how and when the insurer will give effect to the internal reviewers determination

2.39.3 details of the impact of the internal reviewers determination on the claimant and their claim

2.39.4 details of any ability the claimant may have to access legal assistance or advice on the internal review, which may be paid for by the insurer under the legal costs provisions of the Regulation, and

2.39.5 details of the rights of the claimant to refer the decision to DRS for a merit review, medical assessment or miscellaneous claims assessment as appropriate, detailing any relevant time limits, limitations or restrictions that might apply to such a referral.

3. Dispute Resolution Service (Division 7.2)

Establishment & Jurisdiction

What is the power to establish DRS?

3.1 DRS is established by the authority under Division 7.2 of the Act.

What types of disputes can be resolved by DRS?

3.2 The types of disputes which can be resolved by DRS are merit review matters, medical assessment matters, claims assessment matters and other matters including:

3.2.1 merit review matters under Part 7 Division 7.4 and as declared under Schedule 2, clause 1 of the Act





3.2.2 medical assessment matters under Part 7 Division 7.5 and as declared under Schedule 2, clause 2 of the Act

3.2.3 claims assessment matters including:

3.2.3.1 miscellaneous claims assessment matters under of Division 7.6, Subdivision 3 of the Act and declared to be miscellaneous claims assessment matters under Schedule 2, clause 3 of the Act

3.2.3.2 claims assessment matters, under Division 7.6, Subdivision 2 of the Act and declared to be claims assessment matters under Schedule 2, section 4 of the Act, including claims referred for a certificate of exemption from assessment, and including those matters, and

3.2.4 other matters under Division 7.2 section 7.2 of the Act, where a provision of the Act confers a function on DRS

3.3 Other matters referred to in clause 3.2.4 of these dispute resolution guidelines may be referred to DRS by writing to the Executive Director, DRS who will designate an appropriate decision maker or decision makers for that other matter to be referred to.

Objects

What are the objects of the Act about dispute resolution?

3.4 The objects of the Act are established in Division 1.1 section 1.3 of the Act, many of which are directly relevant to claims and dispute resolution.

(2) .. the objects of this Act are:

(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities

(b) to provide early and ongoing financial support for persons injured in motor accidents

…

(f) to deter fraud in connection with compulsory third-party insurance

(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes

(h) to ensure the collection and use of data to facilitate the effective management of the compulsory third-party insurance scheme.

(3) It must be acknowledged in the application and administration of this Act:

(a) that participants in the third-party insurance scheme have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable and of promoting the recovery and return to work or other activities of those injured in motor accidents, and







(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict access to non-economic loss compensation to serious injuries, and

…

(4) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.

(5) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned.

What are the objects of DRS?

3.5 The objects of DRS are outlined in Division 7.2, section 7.3 of the Act:

(a) to provide a timely, independent, fair and cost effective system for the resolution of disputes that is accessible, transparent and professional,

(b) to assess claims and disputes fairly and according to the substantial merits of the matter with as little formality and technicality as is practicable and to minimise the cost to the parties,

(c) to ensure the quality and consistency of decision making by decision-makers,

(d) to make appropriate use of the knowledge and experience of decision-makers,

(e) to establish and maintain effective communication and liaison with stakeholders concerning the role of the Service,

(f) to publicise and disseminate information concerning the dispute resolution system and the role of the Service.

How should the Act be interpreted?

3.6 Consistent with Division 1.1 section 1.3(4) of the Act, in the interpretation of a provision of the Act, the Regulation or these dispute resolution guidelines, a construction that would promote the objects of the Act or the provision, and the objects of DRS is to be preferred to a construction that would not promote those Objects.

How should discretions be exercised?

3.7 Consistent with Division 1.1 section 1.3(5) of the Act, in the exercise of a discretion conferred by a provision of the Act, the regulations or these dispute resolution guidelines, the person exercising the discretion must do so in the way that would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.





How do the claims guidelines for insurers apply?

3.8 The claims guidelines [on page [XXX] make provision with respect to the manner in which insurers and their representatives are to deal with claims, under Division 6.1 of the Act.

3.9 The claims guidelines establish five principles and express that insurers must act in accordance with all of the principles at all times and on all dealings with all claims.

3.10 The principles apply to insurers and their representatives during any disputes arising in claims and during any dispute resolution processes under these dispute resolution guidelines.

Lodging applications and replies

Where is DRS located?

3.11 The DRS office is located at Level 19, 1 Oxford Street in Darlinghurst, Sydney, and is open to the public for lodgement of documents and general enquiries from 8:30am to 5:00pm except on Saturdays, Sundays and public holidays.

3.12 DRS may make provision for lodgement of documents electronically and also outside the usual opening hours. Any documents lodged electronically after 5:00pm are deemed to have been received on the next day that DRS is open to the public for lodgement of documents in person.

3.13 The contact details for DRS are:

Phone 13 [XXX] [XXX]

Address: Level 19, 1 Oxford St, Darlinghurst, NSW, 2010

Email: [email protected]

How do you lodge an application with DRS?

3.14 A party may lodge an application with DRS by

3.14.1 application form, by completing the approved DRS application form, and lodging it with DRS by post, email, or in person

3.14.2 online application process, by completing an approved online DRS application process through any electronic dispute management system (EDM), or

3.14.3 telephone, a claimant who is making an application may contact DRS by telephone to make an application, which DRS will confirm in writing to the parties confirming the nature and extent of the application.




mailto:[email protected]

3.15 DRS will as soon as practicable, and preferably within two working days acknowledge receipt of the application, and will give notice of the application to the other party, providing them with access to the application and all supporting documents and materials.

What must an application include?

3.16 An application to DRS must include the following information:

3.16.1 all requirements specified in any approved application form

3.16.2 all requirements specified in any approved online application process through any EDM system, or

3.16.3 all information requested by an officer of DRS while a telephone application is being made.

3.17 A claimant who is making an application should list all documents relevant to their application, but they do not need to attach copies of documentation or materials which they have already previously provided to the insurer. Only copies of new documents or materials need to be provided by the claimant. The insurer will be required to provide to DRS all of the documentation or materials in their possession relevant to the application and reply including documents and materials listed in the application by the claimant which the claimant has previously supplied to the insurer.

3.18 DRS may decline to accept an application if the application does not comply with clause 3.16 of these dispute resolution guidelines, and notify the parties as soon as practicable, providing brief reasons for that decision.

Can an applicant withdraw an application?

3.19 An applicant may withdraw an application to DRS by letter, telephone, email, online or in person at any time before DRS notifies the parties of the outcome. DRS will confirm the withdrawal of the application in writing to the parties.

How is a reply lodged?

3.20 A reply should be lodged as soon as practicable by a respondent and within any time limits specified in the Act, the Regulation or these dispute resolution guidelines.

3.21 A respondent may lodge a reply to an application with DRS by:

3.21.1 reply form, by completing the approved DRS reply form, and lodging it with DRS by post, email, or in person

3.21.2 online reply process, by completing an approved online DRS reply process through any EDM system, or

3.21.3 telephone, a claimant who is making a reply may contact DRS by telephone to make a reply, which DRS will confirm in writing to the parties confirming the nature and extent of the reply.

3.22 As soon as practicable, and preferably within two working days of receiving the reply, DRS will acknowledge receipt of the reply to the respondent, and will give


notice of the reply to the applicant, providing them with access to the reply and all supporting documents and materials.

What must a reply include?

3.23 A reply to an application must include the following information:

3.23.1 all requirements specified in any approved reply form for responding to an application

3.23.2 all requirements specified in any approved online reply process through any EDM system for responding to an application, or

3.23.3 all information requested by an officer of DRS while a telephone reply is being made.

3.24 A claimant who is lodging a reply should list all documents relevant to their reply, but they do not need to attach copies to their reply of documentation or materials which they have already previously provided to the insurer, as only copies of new documents or materials need to be provided by the claimant. The insurer will be required to provide to DRS all of the documentation or materials in their possession relevant to the application and reply including documents and materials listed in the reply by the claimant which the claimant has previously supplied to the insurer.

3.25 DRS may decline to accept a reply if the reply does not comply with clause 3.23 of these dispute resolution guidelines.

Why might an application or reply be rejected by DRS?

3.26 An officer of DRS may reject any form, part of a form, or supporting document if it does not substantially comply with these dispute resolution guidelines or the requirements specified, unless the non–compliance is technical and of no significance.

What happens if parties have representatives?

3.27 If the claimant is represented in respect of an application before DRS:

3.27.1 it is sufficient notification for a decision maker, officer of DRS or an insurer to send any document required to be sent to the claimant, to the representative, and

3.27.2 a decision maker or officer of DRS may contact the claimant directly in relation to the application before DRS to make arrangements for medical examinations and/or assessment conferences where the attendance of the claimant is required in person.

3.28 If the insurer is represented in respect of an application before DRS:

3.28.1 it is sufficient notification for a decision maker, officer of DRS or a claimant to send any document required to be sent to the insurer to the representative, and

3.28.2 a decision maker or officer of DRS may contact the insurer directly in relation to the application before DRS.


3.29 If a party retains a representative to represent them, or changes their representative after an application or reply is lodged at DRS, that party or their representative must notify DRS and the other party of the change in representation as soon as possible.

What happens if the claimant is a person under legal incapacity?

3.30 A claimant who is a person under legal incapacity may not make any application, or refer any matter, or carry on proceedings at DRS except by an appointed representative, under Division 7.7 section 7.47(1) of the Act.

3.31 A person may be appointed to represent the person under legal incapacity in accordance with these dispute resolution guidelines, under Division 7.7 section 7.47(2) of the Act.

3.32 An appointed representative may do anything that the dispute resolution guidelines allow or require a party to do, and anything required in these dispute resolution guidelines of that party is also required of the appointed representative.

3.33 If legal incapacity ends during the course of proceedings, in cases such as a person turning 18 years of age, the appointed representative will no longer be appointed as the representative for the claimant.

How to apply to be an appointed representative of a person under legal incapacity?

3.34 A person may make an application to DRS for appointment as an appointed representative for a claimant at any time.

3.35 If the claimant already has an appointed representative, an application to DRS need not be made for appointment, and instead the representative should notify DRS and the other party of the terms of that appointment.

3.36 An appointed representative is a person appointed to represent the claimant under legal incapacity and may be a relative, friend or other suitable person willing and able to be appointed to represent the claimant.

3.37 Any person may be appointed as a representative of a claimant except:

3.37.1 a person under legal incapacity

3.37.2 a decision maker or officer of DRS, or

3.37.3 a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity.

3.38 An application for appointment as an appointed representative for a claimant under legal incapacity may be referred to a claims assessor to consider whether or not to appoint that person to be the appointed representative for the person under legal incapacity.




3.39 An application for appointment as an appointed representative for a claimant under legal incapacity must include:

3.39.1 evidence that the claimant is a person under legal incapacity, and

3.39.2 evidence that the proposed representative consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

3.40 A claims assessor may determine their own procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the proposed appointment in such manner as the claims assessor thinks fit.

3.41 A claims assessor shall issue a decision on whether or not to appoint a person as an appointed representative for a claimant, with brief reasons for that decision, as soon as practicable, and preferably within five working days of the lodgement of the application.

3.42 An appointed representative of a claimant under legal incapacity may apply to a claims assessor to cease their appointment.

3.43 If an appointed representative for a claimant under legal incapacity ceases their appointment, the DRS proceedings will be stayed pending the appointment of a new representative for the claimant under a legal incapacity.

What happens if the claimant needs an interpreter?

3.44 If a party indicates that an interpreter is required in relation to an application to DRS, an officer of DRS will arrange for an interpreter to be available when that is required as part of the dispute resolution process, and the costs of the interpreter will be met by DRS.

3.45 Interpreters and translators accredited by National Accreditation Authority for Translators and Interpreters (NAATI) will be preferred, however a non–NAATI accredited interpreter may be used at the discretion of DRS if required.

Can time limits be extended at DRS?

3.46 An officer of DRS or a decision maker may, if the circumstances justify, abridge or extend any time limit fixed by these dispute resolution guidelines, including any time limit affecting the parties, DRS, or a decision maker, other than the time fixed for a decision maker to issue a certificate including reasons.

3.47 An officer of DRS or a decision maker may extend time before or after the time has expired.

How are days counted at DRS?

3.48 Where a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time will be counted exclusive of that day or of the day of that act or event.

3.49 Where, apart from this subsection, the period in question, being a period of five days or less, would include a day on which DRS is closed for lodgement in person, that day will be excluded.


3.50 Where the last day for doing a thing is a day on which DRS is closed for lodgement in person, the thing may be done on the next day on which the registry is open for lodgement in person.

Can an application be expedited by DRS?

3.51 A party may request that an application to DRS be expedited by notifying DRS and the other party, providing reasons why the application should be expedited.

3.52 In considering whether an application should be expedited, DRS will consider all relevant factors and circumstances surrounding the claim and the application including:

3.52.1 the objects of the Act

3.52.2 the objects of DRS

3.52.3 the obligations and duties of the parties and DRS

3.52.4 the reasons for seeking expedition

3.52.5 the submissions, if any, of the other parties

3.52.6 the interests of both parties to the application, and

3.52.7 the interests of other parties to other disputes, particularly regarding the equity of prioritising the application seeking expedition ahead of other applications.

3.53 If an application is to be expedited, DRS will take all reasonable steps to ensure the application is dealt with as quickly as possible.

Documentation and other supporting material

Do documents lodged with DRS have to be in English?

3.54 If a party wishes to lodge with DRS a document in a language other than English, it is the responsibility of that party to arrange for the document to be translated.

3.55 Documents in a language other than English lodged with DRS should be accompanied by an English translation of the document supported by a declaration by the translator that the translation is an accurate translation.

3.56 If a party is unable to arrange for such a document to be translated, DRS will arrange to have the document translated with the costs of translation to be paid by insurer.

How do you provide surveillance images to DRS?

3.57 If surveillance images or footage are to be lodged with DRS then:

3.57.1 all surveillance images or footage relevant to the issues in dispute must be lodged, not just some selected images or selected footage

3.57.2 any investigators or loss adjusters report concerning those surveillance images or footage must also be lodged, and


3.57.3 the surveillance images or footage must be provided in an unedited digital format, with details advising which specific portions of the images or footage are relevant to the issues in dispute.

How do you provide medical imaging to DRS?

3.58 To provide DRS with medical imaging:

3.58.1 all relevant medical imaging must be listed by the parties in the application or reply and if an electronic copy is available it must be included in the application or reply

3.58.2 the original medical imaging may not to be lodged, and only a copy of the medical image or a report on the content of the medical imaging should be lodged, and

3.58.3 the original medical imaging listed in the application or reply, whether they are in a physical or electronic format, should be taken by the claimant to any relevant medical assessment examination.

3.59 A medical assessor will consider any original medical imaging and their accompanying reports that are taken to the examination, and:

3.59.1 where the medical imaging or reports have not previously been included in the documentation supporting the application or reply and exchanged by the parties, the medical assessor will list the medical imaging in their certificate and will attach a copy of any associated reports to their certificate, and

3.59.2 the party in possession of the medical imaging will make those images, or an electronic version of those images, available to the other party to inspect on request.

How does DRS deal with additional documents?

3.60 Parties may only lodge additional documents, after they have lodged documents with their application or reply either:

3.60.1 with the consent of the other party, or

3.60.2 in response to a specific request or direction from the decision maker or an officer of DRS, and

3.60.3 with approval of the decision maker or an officer of DRS having considered all of the circumstances.

What happens if the date a document was delivered is unknown?

3.61 For the purpose of these dispute resolution guidelines regarding internal reviews by insurers and disputes referred to the Dispute Resolution Service, if the date of delivery or receipt of a document is unable to be ascertained, and the document was delivered to the address given by a claimant or insurer for delivery of documents, then the following deeming provisions apply.

3.62 Unless there is evidence to the contrary, the documents are to be taken to be received by the person as follows:


3.62.1 in the case of personal delivery to a physical address, the day the document is delivered to that address

3.62.2 in the case of postage to a postal address, five working days after the document is posted

3.62.3 in the case of sending to a DX box, two working days after the document is left in that DX box or in another DX box for transmission to that DX box

3.62.4 in the case of an email to an email address, on the day the email is sent if sent before 5:00pm, or on the day after the email is sent if sent at or after 5:00pm, or

3.62.5 in the case of a facsimile to a facsimile number, on the day the facsimile is sent if sent before 5:00pm, or on the day after the facsimile is sent if sent at or after 5:00pm.

3.63 For matters lodged via the EDM system, the provisions of section 13 of the Electronic Transactions Act 2000 apply for the purpose of these dispute resolution guidelines.

What are the restrictions on medico–legal evidence?

3.64 In any application in relation to a merit review under Division 7.4 of the Act, a medical assessment under Division 7.5 of the Act or the assessment of a claim under Division 7.6 of the Act, evidence given by a health practitioner in relation to a medical matter concerning an injured person is not admissible unless that evidence is from a treating health practitioner of the injured person, or a practitioner authorised by the motor accident guidelines, under Division 7.7 section 7.52 of the Act.

3.65 The Regulation may prescribe the kind of medical assessment matter to which the restrictions in Division 7.7 section 7.52 of the Act apply in addition to permanent impairment matters, under section 7.52(4b) of the Act.

3.66 The Regulation prescribes that the restrictions in Division 7.7 section 7.52 of the Act apply to all medical assessment matters, under section [XXX] of the Regulation.


x.xx Medical Matters where restrictions under section 7.52 apply

Insert Regulation provisions here which will say that the restrictions under section 7.52 of the Act apply to ALL medical dispute types.

3.67 The motor accident guidelines may make provision with respect to the appointment of relevant health practitioners who may be authorised under Division 7.7 section 7.52(1b) of the Act to give evidence, under section 7.52(2) of the Act.

3.68 The claims guidelines provide that health practitioners who have provided a joint medico–legal report to a claimant and insurer under the joint medico–legal report protocols established in the claims guidelines are authorised under section 7.52(1b) of the Act to give evidence in relation to that claim, under section [XXX] of the claims guidelines.










DRS electronic dispute management (EDM) system

Can DRS establish an EDM system?

3.69 DRS may establish an EDM to help support the objects of DRS, including to:

3.69.1 enable applications and replies to DRS to be created, exchanged, lodged and accessed in electronic form

3.69.2 enable documents with respect to applications to DRS to be created, exchanged, lodged, issued and accessed in electronic form between the parties and DRS

3.69.3 enable parties to applications to DRS to communicate in electronic form with DRS and with other parties

3.69.4 enable information concerning the progress of applications to DRS to be provided in electronic form to parties to those disputes; and/or

3.69.5 enable officers of DRS and decision makers to communicate in electronic form with parties to applications to DRS.

3.70 DRS may issue an information sheet for the use of the EDM system, and establish requirements for persons to become registered users of the EDM system, in addition to decision makers and officers of DRS.

3.71 Such an information sheet may provide, among other things, for the specification of the level of access to the EDM system to which persons or specified classes of persons are entitled, the conditions of use of the EDM system applicable to persons generally or persons of any such class, the security methods by which persons using the EDM system are identified and verified, and how users gain access to the EDM system.

3.72 Subject to any information sheet, a person other than a decision maker and an officer of DRS may not use the EDM system for a particular application unless the person is a registered user of the EDM system and is:

3.72.1 a party to the application to DRS or

3.72.2 a legal practitioner or agent representing a party to the application regarding to DRS.

3.73 In relation to any application, the level of access to the EDM system to which a user is entitled, and the conditions of use applicable to a user, are subject to any decision of DRS.

3.74 Documents and information lodged via the EDM system may be dealt with in accordance with the provisions of the Electronic Transactions Act 2000.

3.75 When DRS sends documents, or forwards correspondence to a party who is a registered user of the EDM system, DRS will generally only do so via electronic communication to that party through the EDM system.

3.76 The Regulation may prescribe methods for service of documents (which is defined in Part 11 sections 11.5(4), 11.6(4), and 11.7(4) the Act to include in the definition of serve the words to give or to send) in addition to the methods available in sections 11.5, 11.6 and 11.7 of the Act, under sections 11.5(1f), 11.6(1d) and 11.7(1c) of the Act.



https://www.legislation.nsw.gov.au/%7E/view/act/2017/10/part11

3.77 The Regulation prescribes additional methods for service of documents using the EDM system, under section [XXX] of the Regulation.


x.xx Service of documents in dispute resolution using an EDM system

Insert Regulation provisions here which will enable service under sections 11.5, 11.6 and 11.7 using the DRS EDM system

Managing applications made to DRS

How will DRS manage applications?

3.78 The application will be allocated to a dispute resolution officer (DRO) as the contact point for the parties with DRS who is responsible for the management of the application.

3.79 The DRO will notify the parties how the application will be managed, and about any preliminary issues arising in the application, as soon as practicable, and preferably within two working days of receipt.

3.80 The DRO will consider the application, reply, the documentation and materials to triage the application and determine how the application will be managed, including determining any relevant preliminary issues arising in the application including:

3.80.1 jurisdiction – whether DRS has the power to accept the application

3.80.2 issues in dispute – the issues which are the subject of the application that are in dispute between the parties, and whether it may be possible to assist the parties to narrow or resolve those issues in dispute and what appropriate dispute resolution approaches might assist that to occur

3.80.3 process – the process for the resolution of the issues in dispute between the parties which are the subject of the application

3.80.4 decision maker – an appropriate decision maker or decision makers to determine the application, and

3.80.5 additional documentation and materials – whether any additional documentation and materials relevant to the application are required from the parties to help resolve the issues in dispute and to determine the application.

3.81 In managing the application the DRO must exercise any discretion in the way which best supports the objects of the Act, or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim..

3.82 In managing the application the DRO may:

3.82.1 contact the parties by email, letter, telephone, in person, teleconference, videoconference, face to face conference or other method as appropriate


3.82.2 inquire into any matter relevant to the issues in dispute in such manner as they think fit

3.82.3 assist the parties narrow the issues in dispute, or resolve the issues in dispute where appropriate, using their best endeavours to do so, including using any appropriate dispute resolution approaches.

3.83 The DRO will keep the parties informed of the progress of the application.

Can you object to a decision maker?

3.84 Either party may, after being notified by the DRO of the DRS decision maker who will be the merit reviewer, proper officer, medical assessor, or claims assessor to determine an application, apply to have the application reallocated to a different merit reviewer, proper officer, medical assessor, or claims assessor.

3.85 Any such an application must include reasons why the decision maker is not an appropriate to determine the application.

3.86 The DRO will make a decision on any such an application and may re–allocate the dispute if satisfied that the decision maker is not appropriate to determine the application.

3.87 The DRO may reallocate an application to a different decision maker if the original decision maker becomes unwell, is otherwise unable to determine the application, or the DRO becomes aware that the decision maker is no longer a appropriate to determine the application.

3.88 The DRO will advise the parties of the decision in response to the application to be reallocated, giving brief reasons for the decision.

Can you contact a decision maker?

3.89 Parties must not correspond with a DRS decision maker directly, either in respect of a current or finalised application.

3.90 All correspondence to, and communication with DRS and a decision maker must be directed to the DRO, unless directed otherwise by the decision maker.

Publication of Decisions

Which decisions may be published?

3.91 Details of the decisions of merit reviewers and claims assessors may be published in accordance with these dispute resolution guidelines, under Division 7.7 section 7.50 of the Act.

3.92 DRS may publish decisions of merit reviewers and claims assessors on the SIRA website at www.sira.nsw.gov.au and/or on the Australasian Legal Information Institute (AustLII) website at www.austlii.edu.au.

3.93 The publication of the decisions of merit reviewers and claims assessors is to enhance transparency, accountability and education and to provide guidance to claimants, insurers, representatives and all scheme stakeholders. Publication is




http://www.sira.nsw.gov.au/

http://www.austlii.edu.au/

intended to assist in improving claims management practices, insurer decision making and minimise disputation in the motor accident scheme.

3.94 The authority operates under a presumption in favour of the publication of the decisions of merit reviewers and claims assessors, which may include:

3.94.1 publication of a decision in full, or

3.94.2 publication of a decision in part

3.94.3 Publication of a de–identified and anonymised version (remove identifying particulars or details) of a decision.

3.95 A claimant may request that DRS withhold their decision from publication at any time up to 14 days after the decision is issued. DRS may withhold from publication all or part of a decision if it is desirable to do so because of the confidential or sensitive nature of the information, or for any other reason.

4. Merit review (Division 7.4)

Guideline Powers

What is the power to make guidelines about merit reviews?

4.1 These dispute resolution guidelines in relation to merit reviews by DRS are made under the Act, including under Division 7.4 section 7.12 of the Act.

4.2 The regulations may also make provision for or with respect to merit reviews by DRS under Division 7.4 section 7.16 of the Act.

4.3 These dispute resolution guidelines in relation to merit reviews by DRS are also made under the Regulation, including under section [XXX] of the Regulation.


x.xx Merit reviews

Insert Regulation provisions here which will say we have broad guideline making powers (similar to other dispute types).

Merit review matters

What decisions can you ask to be merit reviewed?

4.4 A claimant may apply to DRS for a merit review of a reviewable decision of an insurer under Division 7.4 section 7.12 of the Act.

4.5 Reviewable decision is defined in Division 7.1 section 7.10 of the Act as an insurer’s decision about a merit review matter.






4.6 Merit review matter is defined in Division 7.1 section 7.1 of the Act as a matter declared by Schedule 2 of the Act to be a merit review matter.

4.7 Schedule 2, section 1 of the Act declares that there are a number of merit review matters which may be the subject of a merit review by DRS.

Applying for a merit review

What has to happen before you can apply for a merit review?

4.8 A merit review application may only be made after:

4.8.1 the decision has been the subject of an internal review by the insurer, under Division 7.4 section 7.11(1) of the Act,

4.8.2 the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the timeframe that they are required to do so, under Division 7.4. section 7.11(2) of the Act.

4.8.3 the insurer has declined to conduct a review Division 7.4 under s 7.11(2) of the Act, and under clauses 2.30 and 2.31 of these dispute resolution guidelines.

4.9 A merit review application may be made without an internal review, under section Division 7.4 7.11(3) of the Act, if the reviewable decision is about a merit review matter that is of a kind prescribed by the Regulation.

4.10 The Regulation prescribes a number of merit review matters where an internal review is not required before an application may be made for a merit review, under section [XXX] of the Regulation.


x.xx No Internal review required before merit review

Insert Regulation provisions here, which will be a list of which merit review matters do not require an internal review before a merit review. This is still under consideration as the regulations has not as yet been drafted.

It is expected that list may include the following dispute types from the Act and from Schedule 2 (which is also proposed to be amended and corrected in the Regulation);

Schedule 2(1missing) - Refund of weekly payments under section 3.20

Schedule 2(1u) - Return to work benefits under section 3.41

Schedule 2(1x) - claimant's duty to cooperate under section 6.24

Schedule 2(1y) - claimant's duty to give particulars under section 6.25

Schedule 2(1z) - insurer's direction re particulars under section6.26

Schedule 2(1missing) - Reinstatement of a claim under 6.26(4)

Schedule 2(1missing) - Review of a merit review under section 7.15

Schedule 2(1aa) - Dispute about legal costs under section 8.10







How long do you have to apply for a merit review?

4.11 These dispute resolution guidelines make provisions for limiting the time within which a merit review application may be made under Division 7.4 section 7.12(9) of the Act.

4.12 An application for merit review must be made within 28 days after the claimant received the insurer’s decision, meaning:

4.12.1 for merit review matters where an internal review is required before a merit review, the merit review application must be made:

4.12.1.1 within 28 days after the claimant received the insurers internal review of the reviewable decision, or

4.12.1.2 if the insurer has failed to complete the internal review and notify the claimant of the internal review within the period required under section 7.9(4) and 7.9(5) and clauses 4.37 to 4.38 of these dispute resolution guidelines, within 28 days after that due date.

4.12.2 for merit review matters prescribed by the Regulation to not require an internal review before a merit review, the merit review application must be made within 28 days of the claimant receiving the insurers reviewable decision.

4.13 If a claimant applies for a merit review more than 28 days after receiving the insurer’s decision, DRS does not have to accept the application.

4.14 DRS may exercise a discretion to accept a late application for a merit review, consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

What is the effect of applying for a merit review?

4.15 The fact that a merit review application has been lodged does not stay or stop the effect of the original decision under review, and action may continue to be taken based on that decision while any merit review is under consideration, under Division 7.4 section 7.12(8) of the Act.

How do you apply for a merit review?

4.16 These dispute resolution guidelines set out how a claimant may apply for a merit review, under Division 7.4 section 7.12 of the Act.

4.17 A claimant may apply for a merit review by making an application to DRS in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.





What must a merit review application include?

4.18 In addition to the standard DRS application requirements set out in clause 3.16 of these dispute resolution guidelines, an application for merit review must also include details of the following information:

4.18.1 the decision of the insurer that is referred for merit review,

4.18.2 the alternative decision sought in the merit review,

4.18.3 issues under review – the elements of the original decision that the party wishes to be reviewed,

4.18.4 the reasons the decision should be changed, and

4.18.5 any additional documentation or materials that the party considers relevant to a review of the decision.

4.19 DRS may decline to conduct a merit review if the application does not comply with clause 4.18 of these dispute resolution guidelines.

Replying to a merit review application

How long do you have to reply to a merit review application?

4.20 An insurer who receives an application for merit review lodged with DRS by the claimant will be given the opportunity to respond to the application by lodging a reply.

4.21 An insurer may lodge a reply to an application for merit review after receiving the application for merit review according to the timeframes listed in the table below:

Merit review matters Reply period

Funeral expenses merit review matters

Schedule 2 section 1a (re Division 3.2 section 3.4)

7 days

Weekly payments merit review matters

Schedule 2 section 1b to h, s, t and v

7 days

Treatment and care benefits merit review matters

Schedule 2 section 1i to r

7 days

Return to work support merit review matters

Schedule 2 section 1u

7 days

Damages claim merit review matters

Schedule 2 section 1w to z

14 days

Other merit Review matters

Schedule 2 section 1, (TBA)

7 days

4.22 If an insurer lodges a reply later than the period allowed to respond to the application in clause 4.21 of these dispute resolution guidelines, DRS does not have to consider the reply.

4.23 DRS may exercise a discretion to consider a late reply to an application for merit review, consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.


How do you reply to a merit review application?

4.24 An insurer may reply to an application for merit review by making a reply to DRS in accordance with the standard DRS reply requirements set out in clauses 3.20 to 3.25 of these dispute resolution guidelines.

What must a reply to a merit review application include?

4.25 In addition to the standard DRS reply requirements set out in clauses 3.23 and 3.24 of these dispute resolution guidelines, a reply to an application for merit review must also include details of the following information:

4.25.1 the response of the insurer to the alternative decision sought in the merit review application, and

4.25.2 the response of the insurer to the reasons the claimant believes the decision should be changed.

4.26 DRS may decline to consider a reply to an application for a merit review if the reply does not comply with clause 4.25 of these dispute resolution guidelines.

[SPACE WILL BE ADJUSTED]


The merit review process

Claimant receives

Internal Review

Claimant applies for

Merit Review

Insurer replies to

Merit Review

DRS DRO arranges merit

review

Merit Reviewer conducts

Merit Review

Parties receive

Merit Review

The claimant receives the insurers internal review decision and reasons

The claimant lodges a merit review application with DRS

within 28 days of receiving the insurers decision

The insurer lodges a reply with DRS (within 7-14 days) with all relevant documents, sending a

copy to the claimant

The DRS Merit Reviewer conducts the Merit Review, makes decisions and writes

brief reasons within 28 days of the application

The claimant and insurer receive the DRS Merit

Reviewers decision and brief reasons within 28 days of

the application

The DRS Dispute Resolution Officer prepares for the merit review

contacting the parties, narrowing or resolving the issues, and

arranging the Merit Review


The Merit Review

How will DRS manage the merit review?

4.27 The application for merit review will be managed in accordance with the provisions set out in clauses 3.77 to 3.82 of these dispute resolution guidelines, Managing applications to DRS. The DRO may also:

4.27.1 arrange for the merit review application to be dealt with by a merit reviewer, under Division 7.4 section 7.12(2) of the Act.

Who will deal with the merit review?

4.28 The merit review will be dealt with by a merit reviewer who has been appointed by the authority, under Division 7.2 section 7.4 of the Act.

4.29 The DRO will advise the parties of the merit reviewer who has been allocated to deal with the merit review.

How is the merit review dealt with?

4.30 These dispute resolution guidelines make provision for the way a merit review is to be dealt with in accordance with the section [XXX] of the Regulation.

4.31 The merit review must be dealt with in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular merit review, which may include undertaking the review purely on the papers, using teleconferences, videoconferences, or face to face conferences as appropriate.

4.32 The merit reviewer may determine the merit review procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as the merit reviewer thinks fit.

Can the merit reviewer consider new material?

4.33 The merit reviewer may consider material that was not provided to the original decision maker. The merit reviewer is required to decide what the correct and preferable decision is having regard to the material then before the reviewer, including any relevant factual material, under Division 7.4 section 7.13(1) of the Act.

Can the merit reviewer request information from the parties?

4.34 The merit reviewer may request information from the parties for the purposes of the merit review, which the parties must provide, under Division 7.4 sections 7.12(5) to (6) of the Act.

4.35 The merit reviewer may decline to review the reviewable decision if the claimant or the insurer has failed to provide any such information required by the merit reviewer, under Division 7.4 section 7.12(7) of the Act.







How will the merit reviewer determine the application?

4.36 The merit reviewer is to decide what is the correct and preferable decision having regard to the material before them, including any relevant factual material and any applicable written or unwritten law, under Division 7.4 section 7.13(1) of the Act.

4.37 The merit reviewer in deciding the correct and preferable decision may exercise all of the insurer functions that are conferred or imposed by or under this Act or any other Act on the insurer, under Division 7.4 section 7.13(2) of the Act.

What decisions may the merit reviewer make?

4.38 In determining a merit review application, the merit reviewer may decide to affirm, vary or set aside the reviewable decision and make a decision in substitution for the reviewable decision or remit the matter for reconsideration by the insurer in accordance with directions, under Division 7.4 section 7.13(3) of the Act.

What does the merit reviewer provide to the parties?

4.39 The merit reviewer is to issue the parties with a certificate as to their determination, including a brief statement of reasons for the determination under Division 7.4 section 7.13(4) of the Act.

When will the merit reviewer application be determined?

4.40 The merit review application will be determined as soon as practicable, and within 28 days after the application was made, however, a determination is not invalid because it is made after the expiration of that period, under Division 7.4 section 7.13(5) of the Act.

Can a merit reviewer correct an obvious error in a certificate? 4.41 If a merit reviewer is satisfied that a certificate as to the merit reviewers

determination issued under Division 7.4 section 7.13(4) contains an obvious error, the merit reviewer may issue a replacement certificate to correct the error under section 7.13(6).

4.42 An obvious error may be corrected at the request of a party, or as a result of the merit reviewer’s identification of an obvious error.

Can the merit reviewer assess legal costs?

4.43 Statutory benefits costs disputes (where there is no other merit review)

A dispute about whether the costs and expenses incurred by a claimant in a statutory benefits claim are reasonable and necessary, is declared to be a merit








review matter, which is capable of being the subject of a merit review application and a merit reviewers determination, under Schedule 2 section 1(aa) of the Act.

4.44 Costs in a merit review application

When making a determination and issuing a certificate under Division 7.4 section 7.13(4) of the Act about a merit review matter arising in a statutory benefits claim, the merit reviewer may include an assessment of the legal costs relating to that merit review in the merit reviewers certificate and reasons, under Part 8 sections 8.10(3) and (4) of the Act.

What is the effect of the merit review decision?

4.45 A merit review decision is binding on the parties under Division 7.4 section 7.14(3) of the Act, subject only to the right of review that exists under section 7.15 of the Act.

When does the merit reviewer decision take effect?

4.46 When a merit review decision takes effect depends on the nature of the merit review decision that is made, as established in Division 7.4 section 7.14 (1) and (2) of the Act.

4.47 The merit review decision should be applied and given effect to by the insurer as quickly as is practicable, in accordance with the insurer’s responsibilities under the claims guideline and its principles.

4.48 If the merit review decision results in an increase in weekly payments of statutory benefits, under Division 7.4 section 7.14(4) and (5) of the Act, the insurer must commence payment of the increased weekly payments within seven days after the issue of the certificate as to the merit reviewers determination.

4.49 Where a merit review decision requires the insurer to make payments of back pay to the claimant, the insurer must make that back payment as quickly as is practicable, in accordance with the insurer’s responsibilities under the claims guideline principles.

What decision information must the insurer provide the claimant?

4.50 On receiving the merit review certificate, the insurer is to advise the claimant about the effect of the decision, providing the claimant with details of:

4.50.1 how and when the insurer will give effect to the merit review decision

4.50.2 the impact on the claimant and their claim of the merit review decision.



https://www.legislation.nsw.gov.au/%7E/view/act/2017/10/part8




Review of a single merit review by a review panel

Which merit review decisions may be reviewed?

4.51 A claimant or an insurer may apply under Division 7.4 section 7.15(1) of the Act to the proper officer to refer a decision of a single merit reviewer to a review panel of merit reviewers for review.

4.52 An application for the referral of a decision of a single merit reviewer to a review panel may only be made on the grounds that the decision was incorrect in a material respect under Division 7.4 section 7.15(2) of the Act.

How long do you have to apply for a review of the decision?

4.53 These dispute resolution guidelines make provisions for limiting the time within which an application for review of a decision of a single merit reviewer may be made, under Division 7.4 section 7.15(6) of the Act.

4.54 An application for review of a decision of a single merit reviewer must be made within 21 days after the date of the decision.

4.55 DRS may refuse to accept an application for review if it was made more than 21 days after the date of the decision.

4.56 DRS may exercise a discretion to accept a late application for review of a decision, consistent with Division 1.1 section 1.3 of the Act, if the proper officer believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

How do you apply for a review?

4.57 These dispute resolution guidelines set out how a claimant or an insurer may apply for a review of a decision of a single merit reviewer, under Division 7.4 section 7.15(1) of the Act.

4.58 A party may apply for a review by making an application to DRS in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.

What must a review application include?

4.59 In addition to the standard DRS application requirements set out in clause 3.16 of these dispute resolution guidelines, an application for a review must also include details of the following:

4.59.1 the decision of the single merit reviewer that is the subject of the application for review, and






4.59.2 the reasons why the decision that is the subject of the application for review is incorrect in a material respect.

4.60 DRS may decline to accept the application if it does not comply with clause 4.59 of these dispute resolution guidelines.


How long do you have to reply to a review application?

4.61 A respondent may lodge a reply within seven days of receiving the application.

4.62 DRS may decline to consider the reply if it is lodged more than seven days after receiving the application.

DRS may exercise a discretion to consider a late reply consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

How do you reply to a review application?

4.63 A respondent may reply to an application for a panel merit review by making a reply to DRS in accordance with the standard DRS reply requirements set out in clauses 3.20 to 3.25 of these dispute resolution guidelines.

What must a reply to a review application include?

4.64 A reply to an application for a panel merit review must also include a response to the reasons given in the application.

4.65 DRS may decline to consider a reply to an application for a panel review of a decision if the reply does not comply with clause 4.64 of these dispute resolution guidelines.

How will DRS manage the review application?

4.66 The application for merit review will be managed in accordance with the provisions set out in clauses 3.77 to 3.82 of these dispute resolution guidelines, Managing applications to DRS. The DRO may also:

4.66.1 arrange for a proper officer to consider the application and make a determination under section 7.15(3) of the Act on whether there is reasonable cause to suspect that the decision of the single merit reviewer was incorrect in a material respect.

What will the proper officer do?

4.67 The proper officer will review the application, any reply, the documentation and materials relevant to the application for review of a decision of a single merit reviewer, to determine whether the proper officer is satisfied that there is reasonable cause to suspect that the decision determining the review was incorrect in a material respect, as required by Division 7.4 section 7.15(3) of the Act and provide brief reasons for the decision.

4.68 The proper officer will advise the parties as soon as is practicable, and preferably within 14 days of the expiry of the period for reply, whether the proper officer is satisfied that there is reasonable cause to suspect that the merit review decision was incorrect in a material respect, and whether the application is to be referred to a merit review panel.



What happens if the proper officer accepts the application?

4.69 If the proper officer is satisfied that there is reasonable cause to suspect that the merit review decision was incorrect in a material respect, then the proper officer is to refer the application to a panel of at least two merit reviewers, under section 7.15(3) of the Act.

Who will conduct the review?

4.70 The merit review panel will be comprised of at least two merit reviewers who have been appointed by the authority under Division 7.4 section 7.4 of the Act. The single merit reviewer whose decision is under review will not be part of the panel.

4.71 The parties will be advised by the DRO of the individual merit reviewers who have been allocated to the merit review panel.

How is the review conducted?

4.72 The merit review panel must be conducted in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular merit review. This may include undertaking the review on the papers, using teleconferences, video conferences, or face to face meetings as appropriate.

4.73 The merit review panel may determine the review procedure, are not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as the merit review panel think fit.

Can the merit review panel consider new material?

4.74 The merit review panel may consider material that was not before the single merit reviewer. The merit review panel is required to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material, under Division 7.4 section 7.13(1) of the Act.

Can the merit review panel request information from the parties?

4.75 The merit review panel may request information from the parties, which they must provide, under Division 7.4 sections 7.12(5) to (7) of the Act.

4.76 The merit review panel may decline to review the reviewable decision if the claimant or the insurer has failed to provide any such information required by the Merit Review Panel, under section 7.12(7) of the Act.

What decisions may the merit review panel make?

4.77 The merit review panel may confirm the decision of the single merit reviewer, or set aside the decision and make a decision in substitution for the decision the review panel set aside, under Division 7.4 section 7.15(4) of the Act.






What does the merit review panel provide to the parties?

4.78 The merit review panel is to issue the parties with a certificate as to the panel’s determination attaching a brief statement of reasons for the determination.

When will the review application be determined?

4.79 The review application will be determined as soon as practicable, and preferably within 21 days after the proper officer’s decision. A merit review panel determination is not invalid because it is made after the expiration of that period.

What is the effect of the merit review panel decision?

4.80 The effect of a merit review panel decision under Division 7.4 section 7.15(5) of the Act is the same as the status and effect of a merit review decision under Division 7.4 section 7.14 of the Act, and the provisions of these dispute resolution guidelines at clauses 4.45 to 4.49 apply equally to merit review panel decisions.

5. Medical assessment (Division 7.5)

Guideline Powers

What is the power to make guidelines about medical assessments?

5.1 These dispute resolution guidelines in relation to medical assessments by the DRS are made under the Act, including under Division 7.5 section 7.29 of the Act.

Medical assessment matters

What disputes can be medically assessed by DRS?

5.2 A claimant, insurer, merit reviewer, claims assessor, or a court may refer a medical dispute about a claim to DRS for assessment under Division 7.2 section 7.20 of the Act.

5.3 Medical dispute is defined in Division 7.5 section 7.17 of the Act as a dispute about a medical assessment matter or an issue arising about a medical assessment matter.

5.4 Medical assessment matter is defined in section 7.1 of the Act as a matter declared by Schedule 2 of the Act to be a medical assessment matter.

5.5 Schedule 2 clause 2 of the Act declares that there are a number of medical assessment matters which may be the subject of an application for medical assessment by DRS.







What types of medical assessment applications may be made?

5.6 An application may be made to DRS for medical assessment of medical disputes about:

5.6.1 Permanent impairment – for assessment of the degree of permanent impairment of an injured person that has resulted from an injury caused by a motor accident, under Division 7.5 section 7.21(1) of the Act.

5.6.2 Whether treatment and care is reasonable and necessary – for assessment of whether any treatment and care provided to an injured person is reasonable and necessary in the circumstances or relates to an injury caused by a motor accident, in relation to the entitlement to statutory benefits for treatment and care, under Division 3.4 section 3.24(1) and 3.24(2) of the Act.

5.6.3 Whether treatment and care will improve recovery – for assessment of whether treatment and care expenses incurred more than 26 weeks after the motor accident relate to treatment and care which will improve the recovery of the injured person, under Division 3.4 section 3.28(3) of the Act.

5.6.4 Earning capacity impairment – for assessment of the degree of impairment of an injured persons earning capacity, under Division 4.2 section 4.8 of the Act.

5.6.5 Minor injury – for assessment of whether an injury is a minor injury for the purposes of this Act, under Division 1.2 section 1.6 of the Act, and section [XXX] of the Regulation.


x.xx Minor Injury Definition

Insert Regulation provisions here which will be a list of any specified injuries excluded by the regulations under section 1.6(4) or included by the regulations under section 1.6(5) of the Act.

Exclusions: TBA.

Inclusions: TBA

5.6.6 Non–binding opinion – for assessment at the request of a merit reviewer or claims assessor for the purposes of the provision of a non–binding medical opinion by a medical assessor, under .5 Division 7.5 section 7.27 of the Act.

5.6.7 Further medical assessment – for assessment again of a medical dispute that has been referred for assessment, under Division 7.5 section 7.24 of the Act, but only on the grounds prescribed by the regulations at section [XXX].


x.xx Further medical assessment grounds

Insert Regulation provisions here which will be a list of the grounds for a further medical assessment under section 7.24 of the Act. It is proposed the tests will be along these lines…









(1) A matter referred for assessment under Division 7.5 of the Act may be referred for again for assessment, but only on the grounds of deterioration of an injury or additional information about an injury.

(2) A matter may not be referred again for assessment on the grounds of deterioration of the injury or additional relevant information about the injury, unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous outcome.

5.6.8 Review of a medical assessment – for assessment by a review panel of a medical assessment by a single medical assessor, under Division 7.5 section 7.26 of the Act, but only on the grounds that the assessment was incorrect in a material respect.

Requesting a medical assessment

When can a medical assessment application be made?

5.7 A medical dispute about a decision of an insurer may not be referred for assessment until:

5.7.1 the decision has been the subject of an internal review by the insurer, under Division 7.5 section 7.19(1) of the Act, or

5.7.2 the insurer has failed to complete an internal review and notify the claimant of the internal review decision when required to do so, under Division 7.5 section 7.19(2) of the Act, or

5.7.3 the insurer has declined to conduct a review, under Division 7.5 section 7.19(2) of the Act and under clauses 2.30 and 2.31 of these dispute resolution guidelines.

5.8 A medical assessment application may however be made without an internal review, under section 7.19(3), if the medical dispute is about a decision relating to a medical assessment matter that is of a kind prescribed by the regulations.

5.9 The Regulation prescribes in section [XXX] a number of medical assessment matters where an internal review is not required before an application may be made for a medical assessment including

5.9.1 Further medical assessments under section 7.25 of the Act

5.9.2 Review of a medical assessment under section 7.26 of the Act, and

5.9.3 Non–binding opinions under section 7.27 of the Act.


x.xx No Internal review before merit review

Insert Regulation provisions here which will be a list of which medical assessment matters do not require an internal review before a medical assessment. The list proposed at present is;

Further medical assessments under section 7.25

Review of a medical assessment under section 7.26






Non-binding opinions under section 7.27

How long do you have to apply for a medical assessment?

5.10 These dispute resolution guidelines make provisions relating to the procedures for the referral of disputes for assessment, under Division 7.5 section 7.29 of the Act.

5.11 An application for medical assessment, where an internal review is required before the referral for medical assessment, must be made:

5.11.1 within 28 days after the claimant received the insurers internal review of the reviewable decision, or

5.11.2 if the insurer has not declined to conduct an internal review, but has failed to complete the internal review and notify the claimant of the internal review within the period required under section 7.9(4) and 7.9(5) of the Act and clauses 2.38 to 2.39 of these dispute resolution guidelines, within 28 days after that due date.

5.12 DRS may decline to accept the application if a claimant applies for a medical assessment more than 28 days after receiving the insurers internal review decision.

5.13 DRS may exercise a discretion to accept a late application for a medical assessment, consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

How do you apply for a medical assessment?


5.15 A referral for medical assessment is made by making an application to DRS in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.

Replying to a medical assessment application

How long do you have to reply to a medical assessment application?

5.16 A party who receives an application for medical assessment lodged with DRS by another party or by a merit reviewer, claims assessor or the Court will be given the opportunity to respond to the application by lodging a reply to that application.

5.17 The respondent may lodge a reply to an application for medical assessment within a period of time after receiving the application as listed in the table below:




Medical assessment matters Reply period

Permanent impairment medical assessment matters

Schedule 2 clause 2a

14 days

Treatment and care medical assessment matters

Schedule 2, clause 2b and c

14 days

Earning capacity impairment medical assessment matters

Schedule 2 clause 2d

14 days

Minor Injury medical assessment matters

Schedule 2 clause 2e

14 days

Non–Binding opinion medical assessments

Schedule 2 clause 2(?)

7 days

Further medical assessments


14 days

Review of a medical assessment


14 days

5.18 DRS does not have to consider the reply if a respondent lodges a reply later than the period allowed in clause 5.17 of these dispute resolution guidelines.

5.19 DRS may exercise a discretion to consider a late reply to an application for medical assessment, consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

How do you reply to a medical assessment application?

5.20 A party may reply to an application for medical assessment in accordance with the standard DRS reply requirements set out in clauses 3.20 to 3.25 of these dispute resolution guidelines.

What must a reply to a medical assessment application include?

5.21 The standard DRS reply requirements set out in clauses 3.23 and 3.24 of these dispute resolution guidelines apply to a reply to an application for medical assessment.

5.22 DRS may decline to consider a reply to an application for medical assessment if the reply does not comply with clause 5.21 of these dispute resolution guidelines.



The Medical assessment Process

Claimant receives

Internal Review


Medical Assessment

Insurer Replies to

Merit Review

DRS DRO arranges medical

assessment

Medical Assessor conducts

Assessment

Parties receive

Decision


The claimant lodges a medical assessment application with DRS within 28 days of receiving the

insurers decision

The insurer lodges a reply with DRS within 14 days, with all

relevant documents, sending a copy to the claimant

The DRS Medical Assessor conducts the medical

assessment, makes decisions and writes brief reasons

The claimant and insurer receive the DRS Medical

Assessors decision and brief reasons within 7 days of the

assessment

The DRS Dispute Resolution Officer prepares for the medical

assessment contacting the parties, narrowing or resolving the issues, and arranging the

medical assessment


The medical assessment

How will DRS arrange the medical assessment?

5.23 The application for medical assessment will be dealt with in accordance with clauses 3.77 to 3.82 of these dispute resolution guidelines, Managing applications to DRS. The DRO may also:

5.23.1 make assessment arrangements – arrange for the medical assessment application to be dealt with by one or more medical assessors, under Division 7.5 section 7.20(2) of the Act.

Who will conduct the medical assessment?

5.24 The medical assessment will be conducted by a medical assessor who has been appointed by the authority, under Division 7.2 section 7.4 of the Act.

5.25 The parties will be advised by the DRO of the individual medical assessor or medical assessors who have been allocated to conduct the medical assessment.

How is the medical assessment conducted?

5.26 The medical assessment must be conducted in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular medical assessment. This may include undertaking the assessment on the papers, using teleconferences, videoconferences, face to face conferences or medical examinations as appropriate.

5.27 The medical assessor may determine the medical assessment procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as the medical assessor thinks fit.

Can the medical assessor request information from the parties?

5.28 The medical assessor may request such information from the claimant and/or insurer as they may reasonably require for the purposes of the medical assessment, which the claimant and/or insurer must provide, under Division 7.5 sections 7.20(4) to (6) of the Act.

5.29 The medical assessor may decline to make a medical assessment if the claimant or the insurer has failed to provide any such information required by the medical assessor, under section 7.20(6) of the Act.

When may the medical assessor contact a treatment provider?

5.30 A medical assessor may, at their discretion, communicate with any of the claimants treating health practitioners in relation to health or safety issues noted by a medical assessor as being of an urgent or serious nature, where necessary to prevent or lessen a serious or imminent threat to life or health, or with the consent of the claimant. Any such communication may be considered personal health information and should not form part of the medical assessment application, decision, reasons or any certificate.





Can a support person be present at a medical examination?

5.31 If the person being examined is a person under a legal incapacity, a parent, tutor, next friend, legal guardian, carer or other support person may be present during an examination.

5.32 If the person being examined is not a person under a legal incapacity, a support person may only be present during an examination if the medical assessor conducting the examination is satisfied it is reasonable in the circumstances. During the conduct of such an examination any person other than the claimant who has been permitted to be present may not respond to questions or speak on behalf of the claimant, unless invited to do so by the medical assessor.

5.33 Legal, medical or other representatives of the claimant or any other party may not be present during an examination unless the proper officer gives prior approval and is satisfied that the circumstances warrant it.

What happens if you can’t attend a medical examination?

5.34 A claimant must notify DRS as soon as they become aware that they will be unable to attend a medical examination or medical review panel examination arranged for them.

5.35 If the claimant has given DRS 72 hours (three working days) or more notice before the scheduled time for an examination, the claimant will not be required to pay any cancellation fees.

5.36 If the claimant has given DRS less than 72 hours (three working days) notice before the scheduled time for an examination, or fails to attend an examination, or attends an examination late which results in a cancellation, the claimant will be required to pay a cancellation fee equal to the amount of any cancellation fees that DRS is required to pay to the medical assessor or Interpreter.

5.37 If clause 5.36 of these dispute resolution guidelines applies, DRS will send a notification to the claimant seeking payment of the cancellation fee.

5.38 A new date for an examination will only be scheduled if the proper officer is satisfied that the claimant has provided to DRS:

5.38.1 a reasonable excuse for the late attendance or non–attendance

5.38.2 evidence that payment of the cancellation fee would cause the claimant financial hardship

5.38.3 a signed Irrevocable Authority and Direction in a form acceptable to DRS, addressed to the insurer, directing the insurer to pay the cancellation fee from the claimants settlement monies, or

5.38.4 payment of the cancellation fee.

Are medical assessments private?

5.39 Medical assessments are conducted in private and are not open to the public. An examination may not be recorded by the claimant or any other person unless with the prior agreement of the proper officer, the medical assessor and the consent of the claimant.


Permanent Impairment

What must a medical assessment application about permanent impairment include?

5.40 In addition to the standard DRS application requirements set out in clause 3.16 of these dispute resolution guidelines, an application for medical assessment about the degree of permanent impairment must also include

5.40.1 evidence in support of the degree of permanent impairment asserted by the party.

5.41 DRS may refuse to accept the application if it does not comply with clause 5.40 of these dispute resolution guidelines, under Division 7.5 section 7.20(3) of the Act.

How is permanent impairment assessed?

5.42 Permanent impairment is to be assessed in accordance with the permanent impairment guidelines issued by the authority. Where those guidelines are silent on an issue, the Guides to the Evaluation of Permanent Impairment, 4th Edition, 3rd Printing (1995) must be followed.

How are impairments arising from multiple injuries assessed?

5.43 Impairments that result from more than one physical injury are to be assessed together to assess the degree of permanent impairment of the injured person, under Division 7.5 section 7.21(2) of the Act.

Are psychiatric or psychological injury impairments assessed separately?

5.44 In assessing the degree of permanent impairment, psychiatric or psychological injury, impairment or symptoms are assessed separately to any other injuries and impairments, under Division 7.5 section 7.21(3) of the Act.

5.45 In assessing whether the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident is greater than 10%, psychiatric or psychological injury, impairment or symptoms are assessed separately to any physical injuries and impairments, under Division 1.2 section 1.7 of the Act.

What happens if the impairment has not become permanent yet?

5.46 A medical assessor may decline to make an assessment of the degree of permanent impairment until the medical assessor is satisfied that the impairment caused by the injury has become permanent, under Division 7.5 section 7.21(4) of the Act.

100 DRAFT Motor accident guidelines – for consultation AUGUS






5.47 A medical assessor who declines under section 7.21(4) of the Act to make an assessment, must make an interim assessment under Division 7.5 section 7.22 of the Act.

Treatment and care

Do treatment and care assessments apply to lifetime care participants?

5.48 The provisions contained in Division 7.5 of the Act Medical assessment, including the provisions relating to assessments of treatment and care, do not apply in respect of any treatment and care needs, or excluded treatment and care needs, of a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, under Division 7.5 section 7.18 of the Act.

Further medical assessment

Which matters can be referred for a further medical assessment?

5.49 A medical assessment referred for assessment under Division 7.5 Medical assessment may be referred again for assessment, under section 7.24 of the Act.

5.50 A referral for a further medical assessment may only be made on the grounds prescribed by the Regulation, under Division 7.5 section 7.24(2) of the Act.

5.51 The Regulation provides the grounds for a referral for a further medical assessment in section [XXX].


x.xx Further medical assessment grounds

Insert Regulation provisions here which will be a list of the grounds for a further medical assessment under section 7.24 of the Act.

(?) A matter referred for assessment under Division 7.5 of the Act may be referred for again for assessment, but only on the grounds of deterioration of an injury or additional information about an injury.

(?) A matter may not be referred again for assessment on the grounds of deterioration of the injury or additional relevant information about the injury, unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous outcome.

(?) If an injury has not previously been the subject of a medical assessment, a further medical assessment application is not required to apply for that injury to be assessed, and instead an original assessment application may be made relating to that injury.




http://www.lifetimecare.nsw.gov.au/lifetime-care-and-support-scheme/guidelines,-policies-and-legislation%23gref

http://www.lifetimecare.nsw.gov.au/lifetime-care-and-support-scheme/guidelines,-policies-and-legislation%23gref




How long do you have to apply for a further medical assessment?

5.52 An application for further medical assessment may be made at any time under Division 7.5 section 7.24(1) and (2) of the Act.

How many further medical assessments can be requested?

5.53 A medical dispute may not be referred again for assessment by the claimant or the insurer on more than one occasion, under Division 7.5 section 7.24(3) of the Act.

5.54 If an injury has not previously been the subject of a medical assessment, a further medical assessment application is not required to apply for that injury to be assessed and instead an original assessment application may be made relating to that injury, under section [XXX] of the Regulation.

How will DRS arrange for the further medical assessment?

5.55 The application for a further medical assessment will be managed in accordance with the DRS dispute application management approach set out in clauses 3.77 to 3.82 of these dispute resolution guidelines, managing applications to DRS. The DRO may also:

5.55.1 arrange a proper officer – arrange for a proper officer to consider the application and make a determination under Division 7.5 section 7.24(5) of the Act, on whether the proper officer is satisfied that the application meets the requirements for referral under section 7.24 of the Act and section [XXX] of the Regulation.


5.56 The proper officer will review the application and any reply, and the documentation and materials relevant to the application for a further medical assessment, to determine whether the proper officer is satisfied that the application meets the requirements for referral under section Division 7.5 7.24(2) of the Act and section [XXX] of the Regulation.

5.57 The proper officer will advise the parties of that determination, providing brief reasons for the determination, within 14 days of the expiry of the period for the respondent to lodge a reply.


5.58 If the proper officer is satisfied that that the application meets the requirements for referral for a further medical assessment, then the proper officer will arrange for the medical dispute to be referred by the dispute resolution officer to one or more medical assessors for a further medical assessment.






Can the scope of a further medical assessment be limited?

5.59 The matters in dispute in a further medical assessment can be limited by an agreement between the parties as to the degree of permanent impairment of an injured person that has resulted from a particular injury, or whether a particular injury was caused by a motor accident, under Division 7.5 section 7.25 of the Act.

Medical assessor’s certificates and reasons

When will the medical assessment application be determined?

5.60 The medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment as soon as practicable, and preferably within seven days of the medical examination of the claimant, or where there is no medical examination of the claimant, preferably within seven days of the medical assessor receiving the application for assessment.

What does the medical assessor provide to the parties?

5.61 The medical assessor is to issue the parties with a certificate as to the matters referred for assessment, under Division 7.5 section 7.23(1) of the Act.

5.62 The medical assessor’s certificate is to set out the reasons for any finding by the medical assessor as to any matter certified in respect of which the certificate is conclusive evidence, under Division 7.5 section 7.23(7) of the Act.

When is a combined certificate of permanent impairment needed?

5.63 A combined certificate of the total degree of permanent impairment is needed if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than a particular percentage, under Division 7.5 section 7.23(8) of the Act.

5.64 A medical assessor nominated by the authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries and is to give a combined certificate as to that total degree of permanent impairment, under Division 7.5 section 7.23(8) of the Act, which is to be issued to the parties as soon as practicable, and preferably within three working days of receiving all of the single medical assessor’s certificates.

What is provided when a non–binding opinion is requested?

5.65 The medical assessor to whom a medical assessment matter has been referred for the purposes of the provision of a non–binding opinion under section 7.27 of the Act, is to give the parties and the merit reviewer or claims assessor a statement of their opinion as soon as practicable, and preferably within seven days of any medical examination of the claimant, or where there is no medical examination of the claimant preferably within seven days of receiving the referral for a non–binding opinion.







5.66 The medical assessor’s statement of their opinion is to set out the reasons for their opinion on the matters referred.

Can an obvious error be corrected by a medical assessor?

5.67 Either party may request that an obvious error be corrected by application to DRS. An obvious error may also be corrected as a result of the medical assessor’s identification of an obvious error in their certificate.

5.68 If a medical assessor is satisfied that a certificate issued under Division 7.5 section 7.23 contains an obvious error, a medical assessor may issue a replacement certificate to correct the error under section 7.23(9) of the Act.

What is the status of a medical assessor’s certificate?

5.69 A medical assessor’s certificate is prima facie evidence of any matter certified as to the degree of impairment of earning capacity of the injured person as a result of the injury concerned, under Division 7.5 section 7.23(2a) of the Act.

5.70 A medical assessor’s certificate is conclusive evidence of any other matter certified, under Division 7.5 section 7.23(2b) of the Act.

5.71 A medical assessors statement of opinion given in response to a matter referred for the provision of a non–binding opinion, is not binding on the merit reviewer or claims assessor or on the parties to a claim, under Division 7.5 section 7.27(3) of the Act.


5.72 On receiving the medical assessment decision in the certificate, the insurer is to advise the claimant about the effect of the decision, providing the claimant with details of:

5.72.1 how and when the insurer will give effect to the medical assessment decision

5.72.2 the impact on the claimant and their claim of the medical assessment decision.

Review of a single medical assessment by a review panel

Which medical assessments may be referred for a review?

5.73 Either party may apply under Division 7.5 section 7.26(1) of the Act to the proper officer to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review.

5.74 A combined certificate assessment cannot be the subject of review under this section, except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based, under Division 7.5 section 7.26(4) of the Act.








5.75 An application for the referral of a medical assessment of a single medical assessor to a review panel may only be made on the grounds that the decision was incorrect in a material respect, under Division 7.5 section 7.26(2) of the Act.

How long do you have to apply for a review?

5.76 These dispute resolution guidelines make provisions for limiting the time within which an application for review of a medical assessment of a single medical assessor may be made, under Division 7.5 section 7.26(10) of the Act.

5.77 An application for review of a medical assessment of a single medical assessor must be made within 28 days after the date of the certificate of the single medical assessor.

5.78 If a party applies for a review of a medical assessment more than 28 days after the date of the certificate, DRS does not have to accept the application.

5.79 The proper officer may exercise a discretion to accept a late application for review of a medical assessment, consistent with Division 1.1 section 1.3 of the Act, if the proper officer believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim

How many reviews of a medical assessment can you request?

5.80 A medical assessment may not be referred for review on more than one occasion, under Division 7.5 section 7.26(3) of the Act.

How do you apply for a review?

5.81 These dispute resolution guidelines set out how a claimant or an insurer may apply for a review of a decision of a single medical assessor, under Division 7.5 section 7.26(1) of the Act.

5.82 A party may apply for a review by making an application to DRS in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.

What must a review application include?

5.83 In addition to the standard DRS application requirements set out in clause 3.16 of these dispute resolution guidelines, an application for a review must also include the following information:

5.83.1 the decision of the single medical assessor that is the subject of the application for review, and

5.83.2 the reasons why the decision is incorrect in a material respect.

5.84 DRS may decline to accept the application if it does not comply with clause 5.83 of these dispute resolution guidelines.







How long do you have to reply to a review application?

5.85 A respondent who receives an application for a review of a decision of a single medical assessor, may lodge a reply within 14 days of receiving the application.

5.86 If a respondent lodges a reply more than 14 days after receiving the application, DRS does not have to consider the reply.

5.87 DRS may exercise a discretion to consider a late reply to an application for a review, consistent with Division 1.1 section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

How do you reply to a review application?

5.88 A reply must be made in accordance with the standard DRS reply requirements set out in clauses 3.20 to 3.25 of these dispute resolution guidelines.

What must a reply include?

5.89 In addition to the standard DRS reply requirements set out in clauses 3.23 and 3.24 of these dispute resolution guidelines, a reply to a review application must also include

5.89.1 Response – a response to the reasons given in the review application.

5.90 DRS may decline to consider a reply to a review application if the reply does not comply with clause 5.89 of these dispute resolution guidelines.

How will DRS arrange for review to be managed?

5.91 The application for a panel medical review will be managed in accordance with the DRS dispute application management approach set out in clauses 3.77 to 3.82 of these dispute resolution guidelines, Managing applications to DRS. The DRO may also:

5.91.1 arrange a proper officer– arrange for a proper officer to consider the application and make a determination under section 7.26(5) of the Act on whether there is reasonable cause to suspect that the medical assessment was incorrect in a material respect.


5.92 The proper officer will review the application, any reply, the documentation and materials relevant to the application, to determine whether the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, as required by Division 7.5 section 7.26(5) of the Act.




5.93 The proper officer will advise the parties as soon as is practicable, and preferably within 14 days of the expiry of the period for lodgement of a reply by the respondent, whether the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, and whether the application is to be referred to a medical review panel, providing brief reasons for the decision.


5.94 If the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, then the proper officer is to refer the application to a medical review panel of at least 2 medical assessors, under section 7.26(5) of the Act.

Who will conduct the medical review panel?

5.95 The medical review panel will be conducted by at least two medical assessors who have been appointed by the authority under Division 7.2 section 7.4 of the Act. The single medical assessor whose medical assessment is under review will not be on the panel.

5.96 The parties will be advised by the DRO of the individual medical assessors who have been allocated to conduct a particular medical review panel.

Can the scope of a review be limited?

5.97 The matters in dispute before a medical review panel can be limited by an agreement by the parties as to the degree of permanent impairment of an injured person that has resulted from a particular injury, or whether a particular injury was caused by a motor accident, under Division 7.5 section 7.25 of the Act.

How is the medical review panel conducted?

5.98 The review panel must be conducted in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular medical assessment, which may include undertaking the panel review on the papers, using teleconferences, video conferences, face to face meetings, or medical examinations as appropriate.

5.99 The medical review panel may determine the review procedure, are not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as the medical review panel thinks fit.

Can the review panel consider new material?

5.100 The review panel may consider material that was not provided before the medical assessment being reviewed was made. The medical review panel is




required to conduct the review by way of a new assessment of all the matters with which the medical assessment is concerned, under Division 7.5 section 7.26(6) of the Act, subject to clause 5.97 of these dispute resolution guidelines and section 7.25 of the Act.

Can the review panel request information from the parties?

5.101 The medical review panel may request information from the parties for the purposes of the review, which the parties must provide, under Division 7.5 sections 7.20(4) to (6) of the Act.

5.102 The medical review panel may decline to make a medical assessment if the claimant or the insurer has failed to provide any such information required by the medical review panel, under section 7.20(6) of the Act.

What decisions may the medical review panel make?

5.103 In determining a review application, the medical review panel may decide to confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned, under Division 7.5 section 7.26(7) of the Act.

What does the medical review panel provide to the parties?

5.104 The medical review panel is to confirm the single medical assessor’s certificate, or revoke that certificate and issue a certificate as to the medical review panels determination, under Division 7.5 section 7.26(7) of the Act, including a statement of reasons for the determination.

5.105 The medical review panel is also to issue a new combined certificate to take account of the results of the review when required, under section 7.26(8) of the Act.

When will the review application be determined?

5.106 The review application will be determined as soon as practicable, and preferably within 28 days after the proper officer’s decision under section 7.26(5) of the Act. However, a medical review panel decision is not invalid because it is made after the expiration of that period.

What is the status and effect of the medical review panel decision?

5.107 The status and effect of a medical review panel certificate under Division 7.5 section 7.26(7) and 7.26(8) of the Act is the same as the status and effect of a medical assessment under section 7.23 of the Act, and the provisions of these dispute resolution guidelines at clauses 5.67 to 5.70 apply equally to medical review panel certificates.







Costs of attending medical assessments

Who pays your expenses to attend a medical assessment?

5.108 The insurer must pay the reasonable and necessary costs and expenses incurred by the claimant and by a parent or other carer of the claimant in order to accompany the claimant, in attending a medical examination, under Division 7.5 section 7.28 of the Act.

6. Claims assessment (Division 7.6)

Guideline Powers

What is the power to make guidelines about claims assessments?

6.1 These dispute resolution guidelines in relation to claims assessments by the DRS are made under the Act, including under Division 7.6, section 7.39 of the Act.

What issues can you refer to DRS for claims assessment?

6.2 A claim may be referred to DRS where the claimant is not represented by an Australian legal practitioner for a damages settlement approval, under Division 6.4 section 6.23(2b) of the Act.

6.3 A party may refer a dispute to DRS for miscellaneous claims assessment, under Division 7.6 section 7.42 of the Act.

6.4 A claimant or insurer may refer a claim for damages to DRS for claims assessment, under Division 7.6 section 7.32(1) of the Act, which is defined in section 7.30(2) to include referring a claim for a certificate of exemption from assessment.

6.5 A party may refer a claim for damages to DRS for further claims assessment where significant new evidence is produced in court proceedings after a claims assessor has previously assessed a claim, under Division 6.5 section 6.34 of the Act.

Damages Settlement Approval

Which settlements need to be approved?

6.6 If a claimant is not represented by an Australian legal practitioner, a claim for damages cannot be settled unless the proposed settlement is approved by DRS, under Division 6.4 section 6.23(2b) of the Act.







https://www.legislation.nsw.gov.au/%7E/view/act/2017/10/part6/div6.5?


When can an application for settlement approval be made?

6.7 A claim for damages cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%, under Division 6.4 section 6.23(1) of the Act.

6.8 If a claimant and insurer have agreed to a proposed damages settlement, and the claimant is not represented by an Australian legal practitioner, the insurer is to make an application to DRS on behalf of both the claimant and the insurer seeking a damages settlement approval, which the insurer is to lodge as quickly as is practicable, and preferably within seven days of reaching that proposed agreement, in accordance with the insurer’s responsibilities under the claims guidelines and its principles.

How do you apply for a settlement approval?

6.9 A request for a settlement approval is made by making an application to DRS in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.

What must a settlement approval application include?

6.10 In addition to the standard DRS application requirements set out in clause 3.16 of these dispute resolution guidelines, an application for settlement approval lodged by the insurer must also include details of the following information:

6.10.1 the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated

6.10.2 the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated

6.10.3 the amount of any advance payments that have been made in advance of the settlement by the insurer and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and

6.10.4 the evidence, documents and materials relevant to an assessment of the damages settlement.

6.11 DRS may decline to accept the settlement approval application if it does not comply with clause 6.10 of these dispute resolution guidelines.



The damages settlement approval process

Parties agree

damages settlement

Insurer applies for approval

DRS DRO arranges approval

Claims Assessor considers

the approval

Parties receive

Approval Decision

The parties agree on a proposed damages

settlement

The insurer lodges a damages settlement approval application on behalf of both parties with

DRS within 7 days of the parties agreeing to settle, attaching all

relevant documents

The DRS Claims Assessor considers the proposed

approval, makes decisions and writes brief reasons

The claimant and insurer receive the DRS Claims

Assessors decision and brief reasons within 7 days

The DRS Dispute Resolution Officer prepares for the damages settlement approval contacting

the parties, narrowing or resolving the issues, and arranging the approval


How will DRS arrange the settlement approval?

6.12 The application for a settlement approval will be managed in accordance with the DRS dispute application management approach set out in clauses 3.77 to 3.82 of these dispute resolution guidelines, Managing applications to DRS. The DRO may also:

6.12.1 make arrangements – arrange for the settlement approval application to be referred to a claims assessor for determination, under Division 6.4 section 6.23 of the Act.

Who will determine whether to approve the settlement?

6.13 The settlement approval will be considered and determined by a claims assessor who has been appointed by the authority, under Division 7.2 section 7.4 of the Act.

6.14 The parties will be advised by the DRO of the claims assessor who has been allocated to determine a particular settlement approval.

How is the settlement approval conducted?

6.15 The settlement approval must be conducted in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular damages settlement, which may include undertaking the assessment purely on the papers, using teleconferences, videoconferences, or face to face conferences, as appropriate.

6.16 The claims assessor may determine the settlement approval procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as the claims assessor thinks fit.

Can the claims assessor request information from the parties?

6.17 The claims assessor may request additional information from the parties for the purposes of the consideration of the settlement approval.

How will the claims assessor determine the application?

6.18 The claims assessor is not to approve the settlement of the claim unless satisfied that the settlement complies with any applicable requirements of, or made under, the Act, or these dispute resolution guidelines, under Division 6.4 section 6.23(3) of the Act.

6.19 The proposed settlement must comply with the following requirements of these dispute resolution guidelines, made under section 6.23(3) of the Act

6.19.1 Timeliness – that the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act

6.19.2 Appropriateness – that the proposed settlement is fair and reasonable and within the range of likely potential damages assessments for the





claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement, and

6.19.3 Understanding – that the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

What decisions may the claims assessor make?

6.20 The claims assessor may decide to

6.20.1 reject the proposed settlement as submitted in the application, with or without recommendations to the parties about the further conduct of the claim

6.20.2 approve the proposed settlement as submitted in the application, or

6.20.3 approve an amended proposed settlement agreed by the parties during the course of the consideration of the proposed settlement approval.

What does the claims assessor provide to the parties?

6.21 The claims assessor is to issue the parties with a certificate as to the determination of the settlement approval application, attaching a brief statement of reasons for the determination.

When will the settlement approval application be determined?

6.22 The settlement approval application will be determined as soon as practicable by the issuing of the claims assessors certificate, and preferably within 14 days after the application was made, however, a determination is not invalid because it is made after the expiration of that period.

What is the status of the settlement approval decision?

6.23 A settlement approval decision is effectively binding on the parties under Division 6.4 section 6.23 of the Act, as the claim cannot be settled by the parties in the absence of the approval.

When does an approved settlement take effect?

6.24 The settlement approval decision should be applied and given effect to by the insurer as quickly as is practicable, and in accordance with any agreed terms of the settlement, and the insurer’s responsibilities under the claims guideline principles.




6.25 On receiving the settlement approval decision, the insurer is to advise the claimant about the effect of the decision, providing the claimant with details of:

6.25.1 how and when the insurer will give effect to the settlement approval decision, and

6.25.2 the impact on the claimant and their claim of the settlement approval decision.

Miscellaneous claims assessment

What disputes can be referred for a miscellaneous claims assessment?

6.26 A party may refer a dispute for miscellaneous claims assessment, under section 7.42 of the Act.


7.42 Assessment of miscellaneous disputes in connection with claims

(1) A dispute may be referred at any time to the Dispute Resolution Service by any party to the dispute for assessment under this Division.

6.27 Dispute is defined in Division 7.6 section 7.40 under Subdivision 3 of the Act as a dispute about a miscellaneous claims assessment matter.

6.28 Miscellaneous claims assessment matter is defined in Division 7.1 of the Act as a matter declared by Schedule 2 of the Act to be a miscellaneous claims assessment matter.

6.29 Schedule 2(3) of the Act declares that there are a number of miscellaneous claims assessment matters which may be the subject of an application for a miscellaneous claims assessment by DRS.

When can a miscellaneous claims assessment application be made?

6.30 A dispute about a decision of an insurer may not be referred for miscellaneous claims assessment until:

6.30.1 the decision has been the subject of an internal review by the insurer, under Division 7.6 section 7.41(1) of the Act

6.30.2 the dispute resolution guidelines provide that an internal review is not required for that miscellaneous claims assessment, under Division 7.6 section 7.41(2a) of the Act

6.30.3 the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the timeframe that they are required to do so, under Division 7.6 section 7.41(2b) of the Act.







6.30.4 the insurer has declined to conduct a review under Division 7.6 section 7.41(2b) of the Act, and under clauses 2.30 and 2.31 of these dispute resolution guidelines.

6.31 A miscellaneous claims assessment may be made without an internal review, under section 7.41(2a), if the dispute is about one of the following miscellaneous claims assessment matters

6.31.1 which insurer is the insurer of the at–fault motor vehicle for the purposes of section 3.3 (Determination of relevant insurer), as listed in Schedule 2, section 3(c) of the Act.

6.32 A miscellaneous claims assessment application may however also be made without an internal review, under section 7.41(3), if the dispute is about a miscellaneous claims assessment matter that is of a kind prescribed by the regulations.

6.33 The Regulation prescribes in section [XXX] miscellaneous claims assessment matters where an internal review is not required before an application may be made, which are the following miscellaneous claims assessment matters

6.33.1 which insurer is the insurer of the at–fault motor vehicle for the purposes of [XXX] section 3.3 (Determination of relevant insurer), as listed in Schedule 2, section 3(c) of the Act.


x.xx No Internal review before miscellaneous assessment

Insert Regulation provisions here which will be a list of which miscellaneous assessment matters do not require an internal review before a miscellaneous assessment

which insurer is the insurer of the at-fault motor vehicle for the purposes of section 3.3 (Determination of relevant insurer, as listed in Schedule 2, section 3(c) of the Act

How long do you have to apply for a miscellaneous claims assessment?

6.34 These dispute resolution guidelines may make provisions with respect to any aspect of procedures to be followed under Division 7.6 section 7.39 of the Act.

6.35 An application for miscellaneous claims assessment, where an internal review is required before the referral for miscellaneous claims assessment, must be made

6.35.1 within 28 days after the claimant received the insurers internal review of the reviewable decision, or

6.35.2 the insurer has received an internal review application, which it has not declined to review, however the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the timeframe that they are required to do so, under Division 7.6 section 7.41(2b) of the Act.





6.35.3 if the insurer has received an internal review application, which it has not declined to review, however the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the timeframe that they are required to do so under Division 7.6 section 7.9(4) and 7.9(5) of the Act and clauses 2.37 to 2.38 of these dispute resolution guidelines, within 28 days after that due date.

6.36 If a claimant applies for a miscellaneous claims assessment more than 28 days after receiving the insurer’s decision, DRS does not have to accept the application.

6.37 DRS may exercise a discretion to accept a late application for a miscellaneous claims assessment, consistent with Division 1.1 section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

How do you apply for a miscellaneous claims assessment?


6.39 A referral for miscellaneous claims assessment is made by making an application to DRS in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.

What must a miscellaneous claims assessment application include?

6.40 In addition to the standard DRS application requirements set out in clause 3.16 of these dispute resolution guidelines, an application for miscellaneous claims assessment must also include the following information:

6.40.1 the decision that is referred for miscellaneous claims assessment

6.40.2 the alternative decision sought in the miscellaneous claims assessment

6.40.3 the reasons the decision should be changed, and

6.41 DRS may decline to conduct a miscellaneous claims assessment if the application does comply with clause 6.40 of these dispute resolution guidelines.

How long do you have to reply to a miscellaneous claims assessment application?

6.42 A party who receives an application for miscellaneous claims assessment lodged with DRS by another party will be given the opportunity to respond to the application by lodging a reply to that application.

6.43 The responding party may lodge a reply to an application for miscellaneous claims assessment within a period of time after receiving the application for miscellaneous claims assessment as listed in the table below for the various types of medical assessment matters;





Miscellaneous claims assessment matters Reply period

Statutory benefits payments matters

Schedule 2 section 3b, f and k

7 days

Procedural claims matters

Schedule 2 section 3h, j, l, and m

14 days

Fault & contributory negligence matters

Schedule 2 section 3a, c, d, e and g

21 days

6.44 If the respondent lodges a reply later than the period allowed in clause 6.43 of these dispute resolution guidelines, DRS does not have to consider the reply.

6.45 DRS may exercise a discretion to consider a late reply to an application for miscellaneous claims assessment, consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.

How do you reply to a miscellaneous claims assessment application?

6.46 A party may reply to an application for miscellaneous claims assessment by making a reply to DRS in accordance with the standard DRS reply requirements set out in clauses 3.20 to 3.25 of these dispute resolution guidelines.

What must a reply to a miscellaneous claims assessment application include?

6.47 In addition to the standard DRS reply requirements set out in clauses 3.23 and 3.24 of these dispute resolution guidelines, a reply to an application for miscellaneous claims assessment must also include the following information:

6.47.1 the response of the party to the alternative decision sought in the application for miscellaneous claims assessment

6.47.2 the response of the party to the reasons the other party believes the decision should be changed.

6.48 DRS may decline to consider a reply to an application for miscellaneous claims assessment if the reply does not comply with clause 6.47 of these dispute resolution guidelines.


The miscellaneous claims assessment process

Claimant receives

Internal Review


Assessment

Insurer Replies to

Application

DRS DRO arranges

assessment

Claims Assessor conducts

Assessment

Parties receive

Decision


The claimant lodges a miscellaneous claims assessment application with DRS within 28 days of receiving the insurers

decision

The insurer lodges a reply with DRS within 7-21 day, with all

relevant documents, sending a copy to the claimant

The DRS Claims Assessor conducts the miscellaneous claims assessment, makes decisions and writes brief

reasons

The claimant and insurer receive the DRS Claims

Assessors decision and brief reasons within 7 days of the

assessment

The DRS Dispute Resolution Officer prepares for the

miscellaneous claims assessment contacting the parties, narrowing

or resolving the issues, and arranging the assessment


How will DRS arrange the miscellaneous claims assessment?

6.49 The application for miscellaneous claims assessment will be managed in accordance with the DRS dispute application management approach set out in clauses 3.77 to 3.82 of these dispute resolution guidelines, Managing applications to DRS. The DRO may also:

6.49.1 make arrangements – arrange for the miscellaneous claims assessment application to be referred to a claims assessor, under Division 7.6 section 7.32(2) of the Act.

6.50 The provisions of Division 7.6 Claims assessment, Subdivision 2 assessment of claims for damages, also apply to the assessment of miscellaneous claims assessment under Subdivision 3 Miscellaneous claims assessments, due to the operation of Division 7.6 section 7.42(2) of the Act.

Who will conduct the miscellaneous claims assessment?

6.51 The miscellaneous claims assessment will be conducted by a claims assessor who has been appointed by the authority, under Division 7.2 section 7.4 of the Act.

6.52 The parties will be advised by the DRO of the claims assessor who has been allocated to conduct a particular miscellaneous claims assessment.

How is the miscellaneous claims assessment conducted?

6.53 The miscellaneous claims assessment must be conducted in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular miscellaneous claims assessment, which may include undertaking the assessment purely on the papers, using teleconferences, videoconferences, or face to face conferences, as appropriate.

6.54 The claims assessor may determine the miscellaneous claims assessment procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as the claims assessor thinks fit.

What are the claims assessors powers and procedures?

6.55 The claims assessor conducting the miscellaneous claims assessment may exercise as required the same claims assessor powers and procedures as for claims assessments that are referred to in the following sections of these dispute resolution guidelines:

6.55.1 Can the claims assessor request additional information? (Clauses 6.92 to 6.98)

6.55.2 Can the claims assessor provide documents to a party? (Clauses 6.99 to 6.105)

6.55.3 Can parties be assisted to communicate in claims assessments? (Clause 6.107)

6.55.4 How will a claims assessor assess a claimant’s legal costs? (Clause 6.114).





When will the miscellaneous claims assessment be determined?

6.56 The miscellaneous claims assessment will be determined by the claims assessor as soon as practicable and preferably within seven days after the assessment, under Division 7.6 section 7.36(4) of the Act, however a determination is not invalid because it is made after the expiration of that period.


6.57 The claims assessor is to issue the parties with a certificate as to the miscellaneous claims assessment, attaching a brief statement of reasons for the assessment under Division 7.6 section 7.36(5) of the Act.

Can a claims assessor correct an obvious error?

6.58 If the Principal claims assessor (PCA) is satisfied that a certificate as to an miscellaneous claims assessment or a statement of reasons attached to the certificate contains an obvious error, the PCA may issue, or approve of the claims assessor issuing, a replacement certificate or statement of reasons to correct the error, under Division 7.6 section 7.36(6) of the Act.

6.59 An obvious error may be corrected at the request of a party, or as a result of the claims assessors or PCAs identification of an obvious error.

What is the status of the miscellaneous claims assessment decision?

6.60 An assessment of a dispute about a miscellaneous claims assessment matter relating to a claim for statutory benefits is binding on the parties to the dispute under Division 7.6 section 7.42(3) of the Act.

When does the miscellaneous claims assessment take effect?

6.61 The miscellaneous claims assessment decision should be applied and given effect to by the insurer as quickly as is practicable, in accordance with the insurer’s responsibilities under the Claims guideline principles.


6.62 On receiving the miscellaneous claims assessment decision, the insurer is to advise the claimant about the effect of the decision, providing the claimant with details of:

6.62.1 how and when the insurer will give effect to the miscellaneous claims assessment decision, and

6.62.2 the impact on the claimant and their claim of the miscellaneous claims assessment decision.






Assessment of claims for damages

What damages claims can be referred for claims assessment?

6.63 A claimant, insurer or both may refer a claim for damages for claims assessment, under Division 7.6 section 7.32(1) of the Act.

6.64 A reference to referring a claim for assessment is defined in Division 7.6 section 7.30(2) of the Act to include a reference to referring a claim for a certificate of exemption from assessment.

Which claims are specified by the Regulation as exempt from assessment?

6.65 A claim is exempt from assessment if the claim is of a kind specified in the regulations as a claim that is exempt from assessment, under Division 7.6 section 7.34(1a) of the Act.

6.66 The kinds of claims that are specified in the Regulation as exempt from assessment, under section [XXX] of the Regulation, are claims where

6.66.1 the claimant, or a dependent in a claim for an award of damages brought under the Compensation to Relatives Act 1897, is a person under a legal incapacity as defined in Division 7.6 section 7.47(2) of the Act, or

6.66.2 the person against whom the claim is made is not a licensed or other insurer, or

6.66.3 the insurer alleges that the claim is a fraudulent claim in terms of the circumstances of the accident giving rise to the claim, or

6.66.4 the insurer has declined to indemnify the owner or driver of the motor vehicle against which the claim has been made.


x.xx No Internal review before miscellaneous assessment

Insert Regulation provisions here which will be a list of which miscellaneous assessment matters do not require an internal review before a miscellaneous assessment

which insurer is the insurer of the at-fault motor vehicle for the purposes of section 3.3 (Determination of relevant insurer, as listed in Schedule 2, section 3(c) of the Act





https://www.legislation.nsw.gov.au/%7E/view/act/1897/31/id8


Which claims may be not suitable for assessment and exempt?

6.67 A claim is exempt from assessment if a claims assessor has made a preliminary assessment of the claim and has determined, with the approval of the PCA, that the claim is not suitable for assessment, under Division 7.6 section 7.34(1b) of the Act.

6.68 In determining whether a claim is not suitable for claims assessment, a claims assessor and the PCA will have regard to the objects of the Act, the objects of DRS and all of the circumstances of the claim as at the time of consideration of the claim which may include, but are not limited to, whether:

6.68.1 the claim has now become exempt from assessment under the regulations

6.68.2 the claim involves complex legal or factual issues

6.68.3 the claim involves complex issues of quantum or complex issues in the assessment of the amount of the claim

6.68.4 the claim involves complex issues of liability including issues of contributory negligence, fault, causation or indemnity

6.68.5 the claimant or a witness, considered by the claims assessor to be a material witness required to appear in person, resides outside New South Wales

6.68.6 the claimant seeks to proceed against one or more parties that are not a licensed motor accidents insurer

6.68.7 the insurer alleges that a person has made a false or misleading statement in a material respect in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim; and/or

What needs to happen before a claims assessment application may be made?

6.69 The parties to a claim must use their best endeavours to settle the claim before referring it for assessment, or for exemption from assessment, under Division 7.6 section 7.32(3) of the Act.

How long do you have to apply for a claims assessment?

6.70 An application for claims assessment, including for exemption from assessment, must be made within 3 years of the date of the accident, under Division 7.6 section 7.33 of the Act.

6.71 If an application for claims assessment, including for exemption from assessment, is made more than 3 years after the motor accident, the applicant must provide a full and satisfactory explanation for the delay for a claims assessor to determine whether to grant leave for the claim to be referred for assessment, including an exemption from assessment, under Division 7.6 section 7.33 of the Act.






How do you refer a claim for damages for a claims assessment?

6.72 These dispute resolution guidelines make provisions relating to the procedures for the referral of disputes for assessment, including for exemption from assessment, under Division 7.6 section 7.39 of the Act.

6.73 A claim for damages may be referred for claims assessment, including for exemption from assessment, by making an application to DRS in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.

What must a claims assessment application include?

6.74 In addition to the standard DRS application requirements set out in clause 3.16 of these dispute resolution guidelines, an application for claims assessment including for exemption from assessment, must also include details of the following information:

6.74.1 the best endeavours that the parties have used to attempt to settle the claim before referring it for assessment, including for exemption from assessment, and

6.74.2 the issues in dispute between the parties.

6.75 DRS may decline to conduct a claims assessment if the application does not comply with clause 6.74 of these dispute resolution guidelines.

How long do you have to reply to a claims assessment application?

6.76 A party who receives an application for claims assessment, including for exemption from assessment, lodged with DRS by another party will be given the opportunity to respond to the application by lodging a reply to that application.

6.77 The responding party may lodge a reply to an application

6.77.1 for exemption from assessment, within seven days after receiving the application, and

6.77.2 for claims assessment, within 21 days after receiving the application.

6.78 If the respondent lodges a reply later than the period allowed in clause 6.77 of these dispute resolution guidelines, DRS does not have to consider the reply.

6.79 DRS may exercise a discretion to consider a late reply to an application for claims assessment, including for exemption from assessment, consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act or of the provision concerned, and the objects of DRS and in accordance with any applicable legal requirements, reasonably, impartially and giving proper and genuine consideration to the particular circumstances of the issue and the claim.



How do you reply to a claims assessment application?

6.80 A party may reply to an application for claims assessment, including for exemption from assessment, by making a reply to DRS in accordance with the standard DRS reply requirements set out in clauses 3.20 to 3.25 of these dispute resolution guidelines.

What must a reply to a claims assessment application include?

6.81 In addition to the standard DRS reply requirements set out in clauses 3.23 and 3.24 of these dispute resolution guidelines, a reply to an application for claims assessment, including for exemption from assessment, must also include the following information:

6.81.1 the response of the party including details of the best endeavours that the parties have used to attempt to settle the claim before referring it for assessment, including for exemption from assessment, identified in the claims assessment application

6.81.2 the response of the party to the issues in dispute between the parties identified in the claims assessment application, and

6.82 DRS may decline to consider a reply to an application for claims assessment, including for exemption from assessment, if the reply does not comply with clause 6.81 of these dispute resolution guidelines.



The claims assessment process

Parties use best

endeavours to settle

Party applies for

Assessment

Party Replies to

Application

DRS DRO arranges

assessment

Claims Assessor conducts

Assessment

Parties receive

Decision

The parties use their best endeavours to settle the claim before applying for

a claims assessment

A party lodges a claims assessment application with DRS within 3 years

of the motor accident

The other party lodges a reply with DRS within 21 days

The DRS Claims Assessor conducts the claims

assessment, makes decisions and writes brief reasons

The parties receive the DRS Claims Assessors decision and brief reasons within 21 days of

the assessment

The DRS Dispute Resolution Officer prepares for the claims

assessment contacting the parties, narrowing or resolving the issues, and arranging the

claims assessment


How will DRS arrange the claims assessment?

6.83 The application for claims assessment, including for exemption from assessment, will be managed in accordance with the DRS dispute application management approach set out in clauses 3.77 to 3.82 of these dispute resolution guidelines, Managing applications to DRS. The DRO may also:

6.83.1 make exemption assessment arrangements – arrange for an exemption application under section 7.34(1a) of the Act, to be referred to the Principal claims assessor, under section 7.32(2) of the Act

6.83.2 make claims assessment arrangements – arrange for a claims assessment application, including any exemption application under Division 7.6 section 7.34(1b) of the Act for matters claimed to be not suitable for assessment, to be referred to a claims assessor, under Division 7.6 section 7.32(2) of the Act.

How and when can a claim be exempted from assessment?

6.84 If a claim is exempt from assessment under Division 7.6 section 7.34(1a) of the Act for matters specified in the Regulation as exempt, the PCA, must, as soon as practicable, and preferably within seven days of the due date for the reply to the application, arrange for the issue to the insurer and the claimant of a certificate to that effect under section 7.34(2) of the Act.

6.85 If a claims assessor has determined (with the approval of the PCA) that a claim is not suitable for assessment under Division 7.6 section 7.34(1b) of the Act the PCA, must, as soon as practicable, and preferably within seven days of the claims assessors determination, arrange for the issue to the insurer and the claimant of a certificate to that effect under section 7.34(2) of the Act.

Who will conduct the claims assessment?

6.86 The claims assessment will be conducted by a claims assessor who has been appointed by the authority under Division 7.6 section 7.4 of the Act, and who may assess that particular class of claim under section 7.35 of the Act.

6.87 The parties will be advised by the DRO of the claims assessor who has been allocated to conduct a particular claims assessment.

How is the claims assessment conducted?

6.88 The claims assessment must be conducted in the way which best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular claims assessment, which may include undertaking the assessment purely on the papers, using teleconferences, videoconferences, or face to face conferences, as appropriate.

6.89 The claims assessor may determine the claims assessment procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as the claims assessor thinks fit.







Can the claims assessor request additional information?

6.90 The claims assessor may give a direction in writing to a party requiring the party to produce documents, information, consents and authorities under Division 7.6 section 7.43(1) of the Act.

6.91 The claims assessor may give a direction in writing to a person who is not a party requiring the person to produce documents and information, and the authority must pay the reasonable costs incurred by a person in complying with such a direction under Division 7.6 section 7.43(2) of the Act.

6.92 It is a condition of an insurer’s licence under Division 7.6 section 7.43(5) that the insurer must comply with a claims assessor’s direction given to the insurer under section 7.43.

6.93 The regulations may exempt specified kinds of documents or information from the operation of Division 7.6 section 7.43 under section 7.43(7a) of the Act.

6.94 The regulations may specify cases and circumstances in which a claims assessor is required to exercise the assessors powers under Division 7.6 section 7.43(7b) of the Act.

6.95 The Regulation specify that the kinds of documents or information exempt from the operation of section 7.43, under section [XXX] of the regulations are

6.95.1 Insert exemption here when Reg drafted



x.xx Documents or information exempt from section 7.43

Insert Regulation provisions here which will be a list of any documents and information that are exempt under section 7.43(7a)

6.96 The regulations specify that the cases and circumstances in which a claims assessor is required to exercise the assessors powers under Division 7.6 section 7.43, under section [XXX] of the Regulation are

6.96.1 Insert circumstance here when Reg drafted



x.xx When a Claims Assessor is required to exercise powers under s 7.43

Insert Regulation provisions here which will be a list when a Claims Assessor is required to exercise power under s 7.43(7b)

Can the claims assessor provide documents to a party?

6.97 The claims assessor may produce or furnish documents or information produced to the claims assessor to the parties, under Division 7.6 section 7.44 of the Act.

6.98 The Regulation may exempt specified kinds of documents or information from the operation of Division 7.6 section 7.44 under section 7.44(3a) of the Act.










6.99 The regulations may specify cases and circumstances in which a claims assessor is required to exercise the assessors powers under Division 7.6 section 7.44(3b) of the Act.

6.100 The regulations may specify circumstances in which a claims assessor may not provide documents to a party under Division 7.6 section 7.44(3c) of the Act.

6.101 The Regulation specify that the kinds of documents or information exempt from the operation of section 7.44, under section [XXX] of the regulations are




x.xx Documents or information exempt from section 7.44

Insert Regulation provisions here which will be a list of which documents and information are exempt from s 7.44

6.102 The regulations specify that the cases and circumstances in which a claims assessor is required to exercise the assessors powers under Division 7.6 section 7.44, under section [XXX] of the Regulation are




x.xx When a Claims Assessor is required to exercise power under section 7.44

Insert Regulation provisions here which will be a list of which cases and circumstances the Claims Assessor is required to exercise power under s 7.44

6.103 The Regulation specify that the circumstances in which a claims assessor may not provide documents to a party under Division 7.6 section 7.44, under section [XXX] of the regulations are




x.xx Circumstances where documents or information may not be produced by the Claims Assessor under section 7.44






Insert Regulation provisions here which will be a list of circumstances in which documents which have been produced to the Claims Assessor may not be produced or furnished under s 7.44

Can parties be represented in claims assessments?

6.104 A party is entitled to be represented in claims assessment proceedings by an Australian legal practitioner or other representative, who must have sufficient authority to make binding decisions on behalf of the party, under Division 7.6 section 7.46(2) of the Act.

Can parties be assisted to communicate in claims assessments?

6.105 A party is entitled to such representation or assistance in claims assessment proceedings (for example, the assistance of an interpreter) as may be necessary to enable the party to communicate adequately at the proceedings, under Division 7.6 section 7.46(3) of the Act.

Can parties make written submissions in a claims assessment?

6.106 A claims assessor must take into account any written submission prepared by an Australian legal practitioner acting for a party to a claim and submitted by or on behalf of the party, under Division 7.6 section 7.46(4) of the Act.

Can Claims assessors hold separate proceedings?

6.107 A claims assessor may, subject to any general directions of the PCA, conduct proceedings with all relevant parties and experts in attendance, or separate proceedings in private with any of them, under Division 7.6 section 7.46(5) of the Act.

Can a claims assessment be conducted without a formal hearing?

6.108 If the claims assessor is satisfied that sufficient information has been supplied in connection with a claim, the assessor may undertake the claims assessment without holding any formal hearing, under Division 7.6 section 7.46(6) of the Act.

Can a summons to appear be issued to a party?

6.109 The PCA may issue a summons requiring the attendance of a party if the PCA is satisfied that the party has failed without reasonable excuse to comply with a request by a claims assessor to attend, under Division 7.6 section 7.45(1) of the Act.








What assessments will the claims assessor make?

6.110 In conducting a claims assessment, the claims assessor is to make an assessment of the issue of liability and to specify the amount of damages for the claim, by having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co–operate or ceases to co–operate, under Division 7.6 section 7.36(1) to 7.36(3) of the Act.

6.111 In making an assessment and specifying damages in respect of a claim, a claims assessor may include in the assessment an assessment of the claimants costs (including costs for legal services and fees for medico–legal services) in the matter, under Division 7.6 section 7.37(1) of the Act

How will a claims assessor assess a claimant’s legal costs?

6.112 In making an assessment of a claimants costs a claims assessor

6.112.1 may have regard to the amount of any written offer of settlement made by either party, under Division 7.6 section 7.37(3a) of the Act

6.112.2 must give effect to any requirement of the Regulations under Part 8 (Costs and fees) as to costs that may be included in an assessment or award of damages or fixing maximum fees and costs under section 7.37(3b) of the Act, and

6.112.3 must have regard to the principles and matters referred to in section 200 of the Legal Profession Uniform Law (NSW), under section Division 7.6 7.37(3c) of the Act.

When will the claims assessment be determined?

6.113 The claims assessment will be determined by the claims assessor as soon as practicable and preferably within 21 days after the assessment, under Division 7.6 section 7.36(4) of the Act, however a determination is not invalid because it is made after the expiration of that period.


6.114 The claims assessor is to issue the parties with a certificate as to the claims assessment, attaching a brief statement of reasons for the assessment under Division 7.6 section 7.36(5) of the Act.

Can a claims assessor correct an obvious error?

6.115 If the PCA is satisfied that a certificate as to an assessment or a statement of reasons attached to the certificate contains an obvious error, the PCA may issue, or approve of the claims assessor issuing, a replacement certificate or statement of reasons to correct the error, under Division 7.6 section 7.36(6) of the Act.





http://www.austlii.edu.au/au/legis/nsw/consol_act/lpul333/






6.116 An obvious error may be corrected at the request of a party, or as a result of the claims assessors or PCA identification of an obvious error.

What is the status of the claims assessment decision?

6.117 An assessment of the issue of liability for a claim is not binding on any party to the assessment, under section 7.38(1) of the Act.

6.118 An assessment of the amount of damages is binding on the insurer, and the insurer must pay the claimant the amount of damages specified in the certificate, under Division 7.6 section 7.38(2) of the Act if:

6.118.1 the insurer admits that liability under the claim, and

6.118.2 the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued.

When does the claims assessment take effect?

6.119 The claims assessment decision should be applied and given effect to by the insurer as quickly as is practicable, in accordance with the insurer’s responsibilities under the Claims guideline principles.

6.120 It is a condition of an insurer’s licence that the amount of damages payable by an insurer (including any costs assessed as payable by the insurer) must be paid within such period as may be prescribed by the regulations, under Division 7.6 section 7.38(3) and (4) of the Act.

6.121 The Regulation prescribes at section [XXX] that the amount of damages payable by an insurer (including any costs assessed as payable by the insurer) must be paid within [INSERT TIME PERIOD AND ANY OTHER DETAILS HERE WHEN REG DRAFTED] days of the date of the claims assessors certificate of assessment under Division 7.6 section 7.36(4) of the Act.


x.xx Time for payment of damages after claims assessment

Insert Regulation provisions here which will set the time for payment of damages by an insurer after a claims assessment.


6.122 On receiving the claims assessment decision, the insurer is to advise the claimant about the effect of the decision, providing the claimant with details of:

6.122.1 how and when the insurer will give effect to the claims assessment decision, and

6.122.2 the impact on the claimant and their claim of the claims assessment decision.





Further assessments of claims for damages

What claims can be referred for further claims assessment?

6.123 A party may refer a claim for damages to DRS for further claims assessment where significant new evidence is produced in court proceedings after a claims assessor has previously assessed a claim, under Division 6.5 section 6.34 of the Act.

How do you refer a claim for damages for a further claims assessment?


6.125 A claim for damages may be referred for a further claims assessment, by making an application to DRS for further claims assessment in accordance with the standard DRS application requirements set out in clauses 3.14 to 3.18 of these dispute resolution guidelines.

Which claims assessment provisions also apply to Further claims assessments?

6.126 The further claims assessment will be dealt with under the same guideline provisions that apply to claims assessments, and clause 6.67 to clause 6.126 inclusive also apply equally to applications for further claims assessment.


https://www.legislation.nsw.gov.au/%7E/view/act/2017/10/part6/div6.5?


Index applications, 1, 23, 28, 31, 32, 40, 44, 47, 53,

57, 61, 68, 75, 82, 88

assessment, 2, 4, 5, 9, 12, 20, 21, 22, 25, 30, 42, 46, 47, 48, 49, 53, 56, 57, 58, 59, 63, 64, 65, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 85, 86, 87, 88

assessment of claims, 2, 75, 77

assessments, 2, 55, 56, 59, 64, 68, 75, 85, 86, 88

certificates, 2, 58, 64

Claims assessment, 2, 4, 64, 75

damages, 2, 9, 11, 13, 22, 64, 65, 67, 68, 75, 77, 78, 86, 87, 88

Damages Settlement, 2, 65

Decisions, 1, 33

Dispute resolution, 1, 2, 5

Dispute Resolution Service, 1, 2, 3, 5, 9, 11, 12, 20, 29, 70

Division 7.3, 1, 2, 4, 5, 8, 9, 14, 18, 19

Division 7.4, 1, 2, 4, 8, 20, 30, 34, 35, 36, 40, 41, 42, 43, 44, 45, 46

Division 7.5, 1, 2, 4, 21, 30, 46, 47, 48, 49, 53, 55, 56, 57, 58, 59, 60, 62, 63, 64

Division 7.6, 2, 4, 21, 30, 64, 70, 71, 72, 75, 76, 77, 78, 82, 83, 84, 85, 86, 87, 88

Documentation, 1, 28

DRS, 1, 2, 3, 4, 5, 6, 7, 8, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 40, 43, 44, 46, 47, 49, 50, 51, 53, 54, 55, 57, 59, 60, 61, 64, 65, 66, 68, 70, 72, 73, 75, 78, 79, 80, 82, 88

duties, 1, 6, 7, 8, 18, 28

electronic dispute management, 1, 23, 31

Insurer internal review (Division 7.3), 8

internal review, 1, 2, 8, 9, 14, 15, 16, 17, 18, 19, 20, 35, 36, 48, 49, 70, 71, 72, 77

Internal review, 1, 4, 5, 9, 35, 48, 71, 77

internal reviews, 3, 4, 8, 9, 29

interpreter, 27, 85

legal incapacity, 5, 26, 27, 54, 77

medical assessment, 1, 2, 4, 5, 9, 11, 12, 20, 21, 29, 30, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 72

Medical assessment, 1, 2, 4, 5, 11, 12, 46, 50, 52, 56

medical assessment matter, 4, 5, 9, 12, 20, 30, 46, 48, 58

medical assessment matters, 2, 9, 11, 12, 20, 21, 30, 46, 48, 49, 50, 72

medical assessments, 2, 46, 48, 49, 50, 55, 57, 59, 64

Medical assessor, 2, 5, 58

merit review, 1, 2, 4, 5, 9, 11, 14, 19, 20, 30, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 48

Merit review, 1, 4, 5, 9, 34, 37

Merit Review, 1, 2, 40, 45

merit review matter, 4, 5, 9, 20, 34, 35, 41, 42

Miscellaneous claims assessment, 2, 5, 12, 70, 73

miscellaneous claims assessment matter, 4, 5, 9, 20, 70, 71, 76

miscellaneous claims assessment matters, 2, 9, 12, 21, 70, 71

Miscellaneous claims assessment matters, 12, 73

Motor Accident Injuries Act 2017, 2, 4, 5, 6

Motor Accident Injuries Regulation 2017, 6

Motor Accidents Injuries Act 2017, 3, 9, 11, 12

Objects, 1, 21, 22

obligations, 6, 7, 8, 18, 28, 91


Obligations, 1, 6, 9

Permanent Impairment, 2, 55

powers, 1, 8, 34, 75, 83, 84

Powers, 1, 2, 34, 46, 64

principal claims assessor, 3, 5

proper officer, 5, 6, 33, 42, 43, 44, 45, 46, 54, 55, 57, 59, 60, 61, 62, 63

Regulation, 3, 6, 9, 20, 22, 24, 30, 31, 32, 34, 35, 36, 40, 47, 48, 49, 56, 57, 71, 77, 82, 83, 84, 85, 87, 92

regulations, 3, 4, 8, 22, 34, 47, 48, 71, 77, 78, 83, 84, 87

review panel, 1, 2, 5, 11, 12, 42, 43, 44, 45, 46, 48, 54, 59, 60, 62, 63

Schedule 2, 4, 5, 9, 11, 12, 20, 21, 34, 35, 37, 41, 46, 50, 70, 71, 73, 77

SIRA, 3, 33, 91

State Insurance Regulatory Authority the authority, 2, 3, 4, 91, 92

the Act, 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 18, 19, 20, 21, 22, 23, 24, 26, 28, 30, 31, 32, 33, 34, 35, 36, 37, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 68, 69, 70, 71, 72, 73, 75, 76, 77, 78, 79, 82, 83, 84, 85, 86, 87, 88

the authority, 3, 4, 5, 6, 8, 20, 40, 45, 53, 55, 58, 62, 68, 75, 82, 83

Treatment, 2, 9, 10, 37, 50, 56

www.sira.nsw.gov.au, 3, 33, 92 [TO BE COMPLETED]

Glossary AustLII Australasian Legal Information Institute

DRS Dispute Resolution Service

EDM Electronic dispute management

DRO Dispute resolution officer

MAIR Motor Accident Insurance Regulation

MAI Motor accident injuries

NAATI National Accreditation Authority for Translators and Interpreters

The authority State Insurance Regulatory Authority

WHBCR Workers & Home Building Compensation Regulation

[TO BE COMPLETED]


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Disclaimer

This publication may contain information that relates to the regulation of workers compensation insurance, motor accident third party (CTP) insurance and home building compensation in NSW. It may include details of some of your obligations under the various schemes that the State Insurance Regulatory Authority (SIRA) administers.

However to ensure you comply with your legal obligations you must refer to the appropriate legislation as currently in force. Up to date legislation can be found at the NSW Legislation website legislation.nsw.gov.au

This publication does not represent a comprehensive statement of the law as it applies to particular problems or to individuals, or as a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation.

This material may be displayed, printed and reproduced without amendment for personal, in–house or non–commercial use.

Motor Accidents Insurance Regulation, Level 6, McKell Building, 2–24 Rawson Place, Sydney NSW 2000

General phone enquiries 1300 656 919

Website www.sira.nsw.gov.au

Catalogue no. | ISBN © Copyright State Insurance Regulatory Authority NSW 0717.

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