The Motor Accidents Injuries Act which came into effect on 1 December 2017 provides a scheme for payment of weekly income loss and treatment for people injured in NSW motor accident. While the motorist’s refund of their Greenslip has been heavily advertised, the significant changes to the motor accident compensation scheme have not. This new Act contains plenty of time limits and not much wriggle room to get around them, as Tom Goudkamp explains:
Time to make a claim for statutory benefits
For 20 years the motor accident legislation enabled a claim to be made within 6 months of the date of the accident. Under the new scheme however you have only 3 months to make a claim.
Under the previous legislation you could make a late claim at any time as long as you provided a full and satisfactory explanation for the delay. Under the new legislation you still have to provide a full and satisfactory explanation for the delay but you cannot make a claim at all after 3 years (unless you have a whole person impairment of greater than 10% or it is a death claim).
If you get your claim in within 28 days of the date of the accident, the insurer must pay you for your earnings lost in those first 28 days. If you do not make your claim within 28 days the insurer does not have to pay you for your income lost in those first 28 days. There appears to be no discretion so if your claim is late, the Insurer will pay for lost income after the date of lodgement but not before.
While we understand the government wants to encourage people to lodge claims early, this provision operates unfairly in the absence of a discretion. What of, for example, the injured person who is seriously injured and hospitalised for the first month after the car accident?
Therefore, if you are employed and losing income as a result of the accident do not hesitate, lodge your claim as soon as you can. If you are not employed, you are still entitled to treatment and care related to your accident related injuries and again I would urge you to get your claim in as soon as you can.
How is time reckoned?
A recent decision published on the SIRA website (www.sira.nsw.gov.au>>disputes and complaints>>decisions>>MA05/18) concers a dispute before the Dispute Resolution Service. The injured person made their claim on the 29th day. The Insurer denied that it had to pay weekly income benefits for the first 28 days because it said the claim was made one day late. The injured person challenged that decision and, after an internal review by the insurer, the dispute was referred to DRS which referred the dispute to a Claims Assessor who determined that the provisions of the Interpretation Act 1987 applied. That act provides that when reckoning 28 days after an event you do not count the day of the event and if the last day to do something falls on a weekend or public holiday you do not count that day either either. As the injured person had lodged their claim on the Monday after the 29th day, they had made the claim on time.
The decision published on the SIRA website is hard to comprehend because all meaningful dates have been removed in the desire to de-identify the decision. It is best understood by the example below:
o Date of accident – Saturday 4 August 2018
o ‘Within 28 days’ means:
· Ignore the day of the accident 4 August
· Add 28 days to get to 1 September
· 1 September is a Saturday
o The last date for lodging the claim is 3 September 2018 being the first business day after the 29th day.
Time to seek internal review
If the Insurer decides to cut off your benefits (weekly income loss benefits or treatment benefits), they must notify you with a letter informing you of the decision, giving the reasons for the decision and referring to the evidence. If you disagree with the insurer’s decision, the Motor Accident Injuries Act allows you to ask the Insurer to conduct an internal review of the decision. The Act does not set a time for doing this but enables a time frame to be set in the Guidelines. Clause 7.33 of the Motor Accident Injuries Guidelines allows an internal review to be made within 28 days of receiving notice of the decision.
The Insurer can accept a late request for an internal review but does not have to. There is no easy avenue of ‘appeal’ if the insurer refuses to allow an internal review so my advice is to get your request in as soon as possible.
When is notice of a decision received?
The motor accidents compensation scheme permits an application for internal review to be made within 28 days of receiving notice of the decision to cut off benefits.
The workers compensation scheme permits an application for internal review of a work capacity decision within 30 days (not 28) of receiving notice of the decision to reduce or cut off benefits.
In the case of Bhusal v Catholic Health Care Limited [2017] NSWSC 838, Justice Button interpreted this phrase as requiring the injured worker to have been given notice not a solicitor who had given some advice to the injured person but had not been formally acting for her. While Justice Button’s decision was overturned by the Court of Appeal it was on a different point.
But the message from that decision is clear, if you do have a claim, it is important for you to keep a record of when important letters or notices are received. My advice is to make a note in pen at the top of the letter or notice ‘date received …’.
The new motor accidents legislation is complicated and the time limits are important to observe and comply with. If you or anyone you know has been injured in a car accident, you may be entitled to compensation. For more information, and to arrange a free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 251 800, or alternatively make an online enquiry.
Written by Tom Goudkamp.
Tom Goudkamp is Managing Director of Stacks Goudkamp. He has over 40 years of experience of successfully bringing compensation claims for people injured in motor vehicle accidents.
