interplay between ctp and workers compensation · interplay between ctp and workers compensation |...

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019

Project Manager

2019 WIRO REGIONAL SEMINAR | WOLLONGONG

Interplay between CTP and Workers CompensationElizabeth Medland

24 May 2019


Motor Accident Injuries Act 2017 (MAIA)


Which scheme do I choose? s3.35


> Generally: no choice!

> A CTP Insurer can deny if:

> A successful claim for workers compensation has been made, OR

> The injured person has failed to comply with a request by the insurer to make a WC claim


Workers compensation recovery (s151Z) and MAIA


> The MAIA included some unintended consequences involving workers compensation

> Remedied by the Workers Compensation Legislation Bill 2018

> Situation now:

> s151Z recovery will not include the workers compensation statutory benefits relating to treatment

> s151Z recovery will also not include the amount for permanent impairment compensation (unless the CTP damages includes an amount of non-economic loss)


> S3.35 only mentions the NSW Workers Compensation Act 1987

> Assumed that therefore an injured person can elect which scheme to pursue statutory benefits

> Recovery provisions in alternative jurisdictions could well mean that a CTP damages payout would be swallowed whole by a recovery

> NB! Important to elect the right scheme!

Interstate workers & WC recovery issues


Time Limits – s6.13 & 6.14


Statutory Benefits > 3 month time limit

> Weekly payments from day after DOA only payable if claim lodged within 28 days. Otherwise payments calculated from date of claim

Damages> 3 year time limit

> BUT, cannot make a common law claim until 20 months post accident (unless WPI > 10% or death claim)

> Cannot settle until 2 years from DOA – unless > 10% WPI


What is a motor accident anyway? s1.9


“Motor Accident”

> Injury

> Use or operation of a motor vehicle

> Caused during one or more of:

> The driving

> A collision or action to avoid a collision with a vehicle

> Vehicle running out of control

> Dangerous situation


Driving

Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775

Eptec Pty Ltd v Alaee [2014] NSWCA 390


System of work

Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26

JA &BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82


“Use” or “operation”

Nominal Defendant v GLG Australia Ltd [2006] HCA 11


What if the vehicle is not registered? s1.10


The Act applies if:

> If the vehicle has motor accident insurance

OR

> Gives rise to a work injury claim

NB: if it occurs on a “road” or “road related area” then the claim is to be lodged on the Nominal Defendant


Minor Injury s1.6

A “soft tissue injury”

or a

“minor psychological or psychiatric injury”


Soft tissue injury

“…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”


Minor psychological injury

Includes:

> Adjustment Disorder

> Acute Stress Disorder

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019INTERPLAY BETWEEN CTP AND

WORKERS COMPENSATION24 May 2019

Project Manager

[email protected]

2019 WIRO REGIONAL SEMINAR | WOLLONGONG

Elizabeth Medland

interplay between ctp and workers compensation · interplay between ctp and workers compensation |...

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