*The contents in this blog relates to legislation in Queensland.
The theme for Brain Injury Awareness Week this year is that ‘every brain injury is different’. Some brain injuries are more obvious than others – some are more significant than others.
Brain injuries may be more common than you think. The Australian Brain Foundation has reported that 1 in 6 people will be affected by brain disease and disorders in their lifetime.
Brain injuries are often referred to as a ‘hidden disability’ because to other people a person may show no signs of any physical injury or impairment in circumstances where the affected individual is suffering from a deterioration in brain function impacting on their ability to think and relate to other people.
Symptoms from brain injuries can vary depending on the nature and extent of the injury.
Mild traumatic brain injury can include symptoms of headache, nausea or vomiting, fatigue or drowsiness, problems with speech, dizziness or loss of balance, blurred vision, changes to taste or smell, sensitivity to light, loss of consciousness, no loss of consciousness but a state of being dazed, confused or disorientated, memory or concentration problems, mood changes or mood swings, feeling depressed or anxious. This is not an all encompassing list and brain injuries can include many other symptoms.
Some mild traumatic brain injuries may go undetected or may have a delayed diagnosis. A person with a traumatic brain injury may have a lack of self awareness of their injury and may not recognise any changes in their function following a traumatic brain injury and might often say “I’m fine”. If you are concerned that you or someone you know might have a brain injury, then medical advice should be sought.
Moderate to severe traumatic brain injuries can include any of the signs and symptoms of mild injury, but also more severe symptoms.
A brain injury can impact on a person’s memory, ability to learn and remember and can impact on a person’s ability to communicate, concentrate, organise and plan. It may impact on their motivation levels and impact on their decision making leading to poor judgments.
People who suffer brain injuries may also suffer additional physical injuries caused by the event in which they were injured.
If you have suffered a brain injury as a consequence of the negligence of another, then you may be entitled to make a compensation claim. Depending on how the injury occurred, a person may be able to make a CTP motor vehicle personal injuries claim or a workers compensation claim or a public liability claim or a medical negligence claim or a NISSQ claim.
You may be able to claim compensation for:-
- pain and suffering;
- medical treatment;
- payment of radiological investigations;
- consultations with a specialist/s;
- psychological treatment including counselling with a psychologist and/or psychiatrist;
- occupational therapy work site visits, ergonomic assessments, functional capacity evaluations, driving assessments and home assessments;
- return to work assistance such as vocational assessments, work trial programs with the employer or a host employer, job placement assistance and retraining assistance;
- pain management programs;
- medical devices;
- prosthetics, aids and equipment to improve the claimant’s independence and/or ability to work;
- home/vehicle modifications;
- domestic or carer assistance;
- loss of income and super.
NIISQ and Serious Injuries from a Car Accident in Queensland
If a claimant has suffered serious or catastrophic injuries in a motor vehicle accident in Queensland after 1 July 2016, then they may be able to make a claim under the National Injury Insurance Scheme Queensland (NIISQ) even if they were at fault for the accident.
The NIISQ only applies to motor vehicle accidents in Queensland. However, all other Australian States and Territories have their own schemes. The information contained in this blog relates to Queensland law.
The NIISQ scheme only applies to serious personal injury which is defined to include traumatic brain injuries but also includes permanent spinal cord injuries; multiple or high level amputations; permanent injury to the brachial plexus; severe burns and permanent blindness caused by trauma.
If the application is accepted, then NIISQ may pay for the necessary and reasonable treatment, care and support for eligible serious personal injuries for up to two years. Towards the end of those years, the participant will be assessed to determine whether NIISQ will offer the person, participation in the scheme for the rest of their life.
Is this different to a CTP personal injury claim?
The schemes are different in terms of the benefits to the participant and are different in how they operate. Under a CTP personal injury claim, an eligible person may recover compensation for various heads of damages, including but not limited to general damages for pain and suffering, past and future loss of income, past and future loss of superannuation which they would not be entitled to receive under NIISQ. They may also be able to recover past and future out of pocket expenses for treatment and past and future care and assistance.
Can I still make a CTP claim if I am accepted as a NIISQ participant?
Yes, you can also make a CTP claim provided you were not 100% at fault for the accident. If you were partially at fault for the accident, you can still also make a CTP claim but your compensation in your CTP claim would be reduced to the extent that you contributed to your injuries.
If you are accepted as a Lifetime Participant to NIISQ, you can choose to remain as a participant of NIISQ and have the treatment, care and support component excluded from your CTP claim.
If you elect to opt out of NIISQ and take a lump sum payment for treatment, care and support in your CTP claim, then you will no longer receive treatment, care and support through NIISQ even if you were accepted as a Lifetime Participant. There cannot be any double dipping.
A person who is confirmed as a Lifetime Participant of NIISQ and who also has a valid CTP claim can provide a Preservation Notice to the CTP insurer and the NISSQ Agency to indicate an intention to pursue a lump sum for damages for future treatment, care and support.
The Preservation Notice should be given:-
- a) within 14 days of being accepted as a lifetime participant of NIISQ, if you start your CTP claim before you become a Lifetime Participant of NIISQ; or
- b) within 14 days after the CTP insurer provides a written acknowledgement of your CTP claim, if you start your CTP claim after you have become a Lifetime Participant of NIISQ.
The Preservation Notice may be given after the 14 day periods described above. However, the insurer and the NIISQ Agency must agree to the Preservation Notice being given after the 14 day period and for a claim that is the subject of a proceeding before a court – the court orders that the notice be given.
If the NISSQ Agency considers the participant is a person under a legal disability, the agency must apply to the Court for an order sanctioning a Preservation Notice. The court can decide whether or not to sanction the notice and can make any order the court considers appropriate.
The issuing of a Preservation Notice entitles the participant to make an election at a later date as to whether the participant wishes to receive treatment, care and support damages in a lump sum as part of the CTP claim or in the alternative, remain as a participant in the Scheme.
The NIISQ Agency then becomes liable to contribute to the insurer’s damages for future treatment, care and support. The Agency stops becoming liable if the Court or the parties reach agreement, that the participant has contributed to his injuries to the extent of 50% or more. In that circumstance, the participant will not be permitted to claim damages at common law for such future treatment, care and support but instead would be restricted to receiving future treatment, care and support from NIISQ. However, the participant would still be entitled to pursue a CTP claim for other heads of damage that they are entitled to, such as general damages for pain and suffering, past and future loss of income, past and future loss of superannuation which they would not be entitled to receive under NIISQ.
What is best for a particular claimant will depend on the circumstances of each case.
Time Limits apply
Different time limits apply depending on the type of claim and therefore, legal advice should be sought urgently should you wish to make a claim.
To request information about our available legal services, or to discuss your personal circumstances with one of our experienced lawyers, please do not hesitate to contact Turner Freeman Lawyers on 13 43 63.