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| 20 February 2019Traps for Young Players
TRAPS FOR YOUNG PLAYERS
Oni Roy and Fiona Seaton
Principal Lawyers, ILARS
20 February 2019
| 20 February 2019Traps for Young Players
The Tables Have Turned – MA and WC Claims
| 20 February 2019Traps for Young Players
▸The Motor Accident Injuries Act 2017 (MAIA) applies to all NSW motor accidents occurring on or after 1 December 2017.
▸The new CTP legislation provides for a no-fault statutory benefits scheme which creates a heightened connection between the two schemes.
▸Now more than ever, workers compensation practitioners cannot be complacent in their speciality.
Motor Accident Injuries Act 2017
| 20 February 2019Traps for Young Players
▸Ask as many questions and obtain as much information as possible and do it quickly.
▸Does the MAIA apply/is it a motor accident?
▸You must know:▹Definition in s1.4 of the MAIA
▹ Division 1.3 of the MAIA
Motor Accident Involved in a Work Accident?
| 20 February 2019Traps for Young Players
▸Section 3.35 of the MAIA means you don’t get a choice!
▸“…not entitled to statutory benefits under this Part if compensation under the Workers Compensation Act 1987 is payable…”▹NB: only applies to NSW workers compensation.
Motor Accident & Work Accident - Where Do You Lodge a Statutory Benefits Claim?
| 20 February 2019Traps for Young Players
▸If workers compensation payable – must lodge the statutory benefits claim with the workers compensation insurer – not CTP.
▸If you lodge both claims you must inform each insurer of that fact.
▸CTP benefits may be available when an injured person’s entitlement ceases under workers compensation. (note s6.13(4) of the MAIA extends time to make a CTP claim in this situation).
▸Every workers compensation practitioner needs to have a thorough understanding of the whole of section 3.35.
Section 3.35 of the MAIA
| 20 February 2019Traps for Young Players
▸ If you intend to pursue a CTP common law claim be aware of the relevant time limits.
▸Section 6.14 of the MAIA:
▹Must be made within 3 years of the MVA
▹Cannot be made before expiration of 20 months from date of MVA – UNLESS – WPI is greater than 10% (under AMA 4).
Common Law?
| 20 February 2019Traps for Young Players
▸ The interplay between the 2 schemes is intricate and complicated – and in some cases very murky.
▸There is a lot more to be aware of than what we can cover in a short time today.
▸Proceed with caution, and inform yourself!
Conclusion
| 20 February 2019Traps for Young Players
▸A statement with all the necessary information is vital in a workers compensation claim.
▸Ask as many questions as you can.
▸Don’t assume any answers – ask the obvious questions!
Importance of Statements
| 20 February 2019Traps for Young Players
▸A basic statement is the best form of information to ground a grant of funding.
▸Not required to be signed.
▸Information can be provided within the body of the Application form.
Statement for an ILARS Application
| 20 February 2019Traps for Young Players
▸Identification information: full name, DOB, current address
▸Name of employer at time of injury
▸Date of injury
▸Mechanism of injury
▸Any information that assists in understanding the nature and purpose of grant requested
What Should a Basic Statement Cover?
| 20 February 2019Traps for Young Players
▸ My name is Amelia Jones
▸ My date of birth is 19 September 1985
▸ My address is 1 Happy Drive, Padstow NSW 2211
▸ Attached to this statement and marked “A” is a copy of my drivers licence.
▸ I am employed as a full time diesel mechanic.
▸ My employer is ABC Pty Ltd.
▸ On 23 January 2019 I was carrying out my usual work duties at ABC Pty Ltd’s premises at 10 Banks Street Padstow when I tripped over a truck part.
▸ The fall caused me to hurt my right leg and I have not been able to walk or stand on that leg ever since.
▸ I saw my GP, Dr Catt, the same day I injured myself and she told me that I will not be able to work for at least 6 weeks.
▸ I have not received any payments of workers compensation since the injury and I do not understand my rights.
Statement example
| 20 February 2019Traps for Young Players
▸Keep in mind the requirements of the Workers Compensation Commission when you begin taking a statement.
▸Consider the WCC Rules, Practise Directions and Forms page.
▸Note Practice Direction 3 from the Workers Compensation Commission “Information, documents and other evidence”.
Tips for New Players
| 20 February 2019Traps for Young Players
▸One Claim for s66 after 19 June 2012.
▸Only one assessment of permanent impairment after 19 June 2012.
▸When is the best time?
Whose Claim is it Anyway?
| 20 February 2019Traps for Young Players
▸ s39 - After 260 weeks you must have 20% WPI to continue to receive Weekly payments.
▸s59A - If you have a WPI of 0 – 10% then you receive medicals for two years post weekly payments. 5 years if you are between 10% and 20%. Over 20% medicals for life.
▸s60AA – You need 15% to access domestic assistance long term.
▸WID claims require a WPI of 15%.
▸As you can see each Threshold occurs at different milestones in the life of a claim.
▸All the above has to be accommodated in the one assessment.
Important Considerations Affecting the Timing of the s66 Claim
| 20 February 2019Traps for Young Players
▸Centrelink payback.
▸Centrelink and the preclusion period affecting the worker’s entitlement to future benefits.
▸The threshold for future benefits eg DSS qualification requirements.
▸Medicare and the quantum of any payback.
▸What effect will any of the terms of settlement have on private health insurance.
▸Will the settlement affect benefits received under an income protection policy?
▸What about rights arising from any TPD, superannuation and life insurance policies?
Important Considerations Affecting Resolution
| 20 February 2019Traps for Young Players
Insurers are required to give notice of the following decisions from 1/1/19:
- Dispute of liability
- Discontinuance or reduction of weekly compensation
▸ What happens in other circumstances?
▸ Be aware that not all work capacity decisions are contained within a s78 notice.
▸ What if your client disagrees?
WCD and s78 of the WIM act 1998
| 20 February 2019Traps for Young Players
Notice of a decision involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice.
• Is it a liability dispute or a WCD or both?
• What notice provisions apply?
• What if two notices are issued?
Notice and S78 of the WIM Act 1998
| 20 February 2019Traps for Young Players
Insurer must not discontinue or reduce payments to a worker of weekly payments unless the required period of notice has expired
• Work Capacity Decision – 3 months
• Liability Decision - payments < 1 year – 2 weeks
- payments > 1 year – 6 weeks
• What if the notice period hasn’t expired?
S80 of the WIM Act 1998
| 20 February 2019Traps for Young Players
Notice provisions apply if the worker has received payments for a continuous period of at least 12 weeks
• What meaning is given to “continuous”?
• What if the worker has had periods on and off work?
S80(2) of the WIM Act 1998
| 20 February 2019Traps for Young Players
Referral to the WCC of a WCD dispute to discontinue or reduce payments operates to stay the decision
• Prevents the taking of action by an insurer
• Does not apply to an internal review under s287A
• Must be referred before expiry of notice period
• What does this mean for you?
S289B of the WIM Act 1998
| 20 February 2019Traps for Young Players
Internal review mandatory
▸Insurer must conduct review and notify within 14 days.
▸May be made at any time before the referral to the WCC.
▸No stay applies to internal reviews.
▸What does this mean for you?
S287A of the WIM Act 1998
| 20 February 2019Traps for Young Players
20 February 2019
Traps for Young Players
PRINCIPAL LAWYERS, ILARS
Oni Roy and Fiona Seaton
