In conversation with Lawyers Weekly, Rita Furfaro, GMP Law senior associate and department head of MVA, explained that while some of the changes were beneficial to claimants, many of the changes caused adverse impacts and concerns. 

“Claims for injuries sustained in a motor vehicle accident are governed by the Personal Injury Commission (PIC). The PIC was established under the Personal Injury Commission Act 2020 and is a New South Wales independent statutory tribunal. The aim of the PIC is to resolve disputes between injured persons and insurers,” she said.

“Some of the concerns around the CTP changes include the PIC’s interpretation of the legislation and the enactment of its own set of rules, namely the Personal Injury Commission Rules 2021, which in themselves are open to interpretation as well as procedural directions and often appear contrary to the intention of the legislation. 

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“If a claimant wanted to test a decision made by the PIC based on an adverse interpretation of the legislation, it would be up to them to fund a ‘test case’ in the Supreme Court against the deep pockets of an insurer or otherwise to accept a decision against their interests.”

According to GMP, a worker in transport or deliveries is highly likely to be injured in a motor accident while at work — and with the Liberal-CTP changes, the transport companies’ insurances are often left out of pocket, and this has driven up their premiums disproportionately.

In the last six years, the increase of workers’ compensation premiums in NSW for freight and delivery industries has been 24 per cent, two-and-a-half times greater than the average.

While there have been several past inquiries into the operation of this CTP scheme, there has been no detailed investigation as to the impact it has had on the daily cost of living for Australian households.

The PIC president can reject a dispute for assessment of a claimant’s whole person impairment (WPI) if they have provided “insufficient evidence in support”. 

“Under the old motor vehicle accident scheme, claimants could merely lodge an application for assessment of their WPI by qualified medical assessors, without the need for submissions in support of that application. Currently, however, there is an expectation that detailed submissions be provided analysing the medical evidence being put before the PIC.

“This has obvious concerns for claimants that are self-represented and may not have the ability or capacity to provide a thorough analysis of their own medical evidence,” Ms Furfaro added.

“The PIC has gone a step further and requested further medical evidence to be obtained by claimants in support of their applications for medical assessments. This requirement forces a claimant to incur further costs in obtaining such evidence by way of treating reports and/or a medicolegal assessment. This is contrary to the intention of the legislation and against the principles of a just quick and cheap resolution of the claim.” 

The PIC president also currently forms an opinion as to whether medical evidence is sufficient to meet the impairment threshold — which Ms Furfaro said causes further issues.

“It ought to be a matter as to whether the injuries are significant enough to justify a referral for assessment of whole person impairment and that the claimant has provided evidence in support of their impairment, as required by s7.20 of the legislation,” she outlined. 

“A claimant will also often develop consequential injuries over time, such as gastrointestinal issues from medication, sleep disorders, scarring and the like. Such injuries need to be assessed by various specialists to determine the final combined impairment. Accordingly, a single medical assessor cannot even determine whether the medical evidence is ‘sufficient’ to exceed the WPI threshold and rather requires assessment by each specialist in the particular field.”

From April this year, changes to the CTP scheme are coming into effect, such as the extension of the period for claimants who are at fault or who do not pass the threshold to entitle their benefits to continue from 26 weeks to 52 weeks, as well as changing the terminology used to describe types of injuries to better represent injuries like lacerations.

However, Ms Furfaro maintained that further changes are needed, such as not always requiring someone to undertake an amateur medical assessment before claiming, and “introducing costs that can be paid to solicitors for acting in relation to statutory benefits claimed”, as many claimants need the assistance of solicitors — who are reluctant to assist if they cannot be paid for such work.

“Claimants that have ‘minor’ injuries are cut off from receiving treatment and care paid by the CTP insurer. They are then left to pay for their own treatment and recover what they can under Medicare. As canvassed above, there should be amendments to the definitions of what injuries meet the threshold for continued benefits, noting that the majority of neck and back injuries, for instance, that are sustained take much longer to recover from but are less  likely to meet the threshold,” Ms Furfaro added.

“For claimants that meet the threshold, they are entitled to continue receiving statutory benefits from the CTP insurer for a period of five years and thereafter are transferred to the Lifetime Care and Support Scheme. 

“There is no indication, however, of how those claimants are being managed, and a survey of such claimants ought to be undertaken. We call upon the newly elected NSW Labor government to take action to rectify these major concerns.”