*The contents in this blog relates to legislation in Queensland.

If you are injured in a motor vehicle accident and another party is responsible for the accident in full or in part, then you may be entitled to obtain funding for medical treatment and/or rehabilitation required as a consequence of the motor vehicle accident.

Insurer’s obligations under the Motor Accident Insurance Act (Qld)

Once liability has been admitted, it is the duty of the insurer to make payments to or for the claimant for private hospital, medical and pharmaceutical expenses reasonably and appropriately incurred because of the injury or a proportionate part of the expenses reflecting the extent of the insurer’s responsibility (assuming the claimant is partly responsible for the accident).

There are some exceptions set out in the Motor Accident Insurance Act (“the Act”) whereby the CTP insurer is not required to make a payment in relation to the claimant’s treatment, care and support such as when the claimant is a participant in the National Injury Insurance Scheme in relation to a serious personal injury resulting from the motor vehicle accident. In this circumstance, the claimant may able to make a claim for such treatment, care and support under the National Injury Insurance Scheme.

If the claimant has sustained an “injury” within the meaning of the Workers Compensation and Rehabilitation Act, then the workers compensation insurer will have the first obligation to pay for reasonable and appropriate medical treatment/rehabilitation required as a consequence of the accident.

The CTP insurer may be prepared to pay for treatment and rehabilitation whilst investigating liability for the accident.

Examples of treatment/rehabilitation which may be funded by the CTP or workers compensation insurer may include one or more of the following services:-

  • treatment such as surgery, physiotherapy, hydrotherapy, chiropractic and exercise physiology services;
  • payment of radiological investigations such as xrays, CT scans, ultrasounds and MRIs and the like;
  • 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.

The above list is not an exhaustive list and can include other reasonable and appropriate treatment/rehabilitation.

The insurer is required to respond in writing to the claimant and provider regarding rehabilitation requests stating whether they are approved, not approved, partially approved or if further information is required to consider the request.

The insurer will consider whether the treatment/rehabilitation is reasonably required as a consequence of the accident or whether it is required because of a pre-existing or subsequent condition. The insurer may seek copies of a claimant’s prior medical records, may request information or documents from a claimant’s treating doctors and may require the claimant to be independently medically examined prior to making their decision.

The insurer may agree to fund an initial rehabilitation assessment for the treating medical provider to perform an assessment of what treatment is required, the length of such treatment and the costs of such treatment. The provider would then provide a report to the insurer. The insurer would then consider whether they are prepared to fund the treatment/rehabilitation in full or in part.

If at the end of a course of treatment/rehabilitation, a treatment provider considers that further treatment/rehabilitation is required, then the insurer will consider a request for further funding and will notify the claimant/treating provider of the insurer’s decision.

If the insurer refuses to fund a request for treatment or rehabilitation, then the insurer must provide the reasons for their decision in writing to the provider and the claimant.

If the claimant is not satisfied with the CTP insurer’s decision, then the claimant can:-

  • apply to the commission to appoint a mediator to help resolve the questions between the claimant and the insurer; or
  • apply to the court to decide what rehabilitation services are, in the circumstances of the case, reasonable and appropriate.

Claimant’s obligations under the Motor Accident Insurance Act

Under the Motor Accident Insurance Act, the claimant has an obligation in relation to rehabilitation to mitigate their loss and take reasonable steps to obtain treatment and seek to recover from their injuries. The claimant has an obligation to obtain reasonable medical treatment that has been recommended, to resume appropriate work and home duties as soon as possible under the guidance of their treating medical provider and seeking appropriate alternative employment within their restrictions if they have lost their job or are unable to return to their former employment/occupation.

Claimants are also required to advise the insurer of any significant change in their medical condition or other circumstances which may affect the extent of their claim such as ceasing work, changing jobs or reducing duties/hours.

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 defined to include:-

  • Permanent spinal cord injuries;
  • Traumatic brain injuries;
  • Multiple or high level amputations;
  • Permanent injury to the brachial plexus;
  • Severe burns;
  • 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.

If you do not agree with a decision made by the NIISQ Agency concerning a person’s eligibility or necessary and reasonable treatment, care and support, then you can request an internal review of the decision which must be made within 28 days on the prescribed form.

If you are not satisfied with the internal review decision, then an application must be made within 28 days of receiving the internal review decision on the prescribed form. The Medical Assessment Tribunal will review decisions that are medical in nature, such as whether your injury meets the medical matters in the eligibility criteria. The Queensland Civil and Administrative Tribunal reviews decisions that are non-medical in nature, such as whether the circumstances of your accident meet the legal definition of a motor vehicle accident.

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:-

  • 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
  • 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.

The National Injury Insurance Scheme (Queensland) Act 2016 does make provision for a participant to apply to re-enter NIISQ at least 5 years after receiving a payout of their treatment, care and support. However, it can only be made in the circumstances prescribed by regulation. At this stage, no regulation currently exists to permit this re-entry process.

If your CTP claim has been finalised and you have not previously been accepted as a participant in NIISQ, then you can seek to buy into NIISQ.  You would have to meet eligibility criteria to participate in NIISQ. The NIISQ Agency would need to accept you as a participant in NIISQ for a period agreed between the NIISQ Agency and yourself and you must pay the NIISQ Agency a contribution towards your treatment, care and support needs in relation to the serious personal injury.  The amount required to be paid is to be prescribed by legislation. At this stage, no regulation currently exists to permit this buy-in process.

Remaining as a Lifetime Participant can be beneficial in that the future care, treatment and support is provided by NIISQ. However, the participant does not have control as to how that future care, treatment and support is spent. Applications for funding approval need to be made to NIISQ for approval for the care, treatment and support.  NIISQ may decline an application and whilst there are rights of review, this process can be expensive and can result in delay and the proposed funding may still be declined. In contrast if a lump sum amount is recovered in a settlement or judgment under the CTP scheme, then the participant has greater control as to how and when that money is spent.

What is best for a particular claimant will depend on the circumstances of each case.

Time Limits apply

In addition to the time limits discussed above, other strict time limits apply to NISSQ claims and CTP claims.

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.

Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.