Post on 05-Aug-2019
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
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
Motor Accident Injuries Act 2017 (MAIA)
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
Which scheme do I choose? s3.35
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
> 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
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
Workers compensation recovery (s151Z) and MAIA
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
> 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)
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
> 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
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
Time Limits – s6.13 & 6.14
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
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
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
What is a motor accident anyway? s1.9
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
“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
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
Driving
Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775
Eptec Pty Ltd v Alaee [2014] NSWCA 390
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
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
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
“Use” or “operation”
Nominal Defendant v GLG Australia Ltd [2006] HCA 11
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
What if the vehicle is not registered? s1.10
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
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
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
Minor Injury s1.6
A “soft tissue injury”
or a
“minor psychological or psychiatric injury”
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
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”
INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 24 May 2019
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
elizabeth.medland@wiro.nsw.gov.au
2019 WIRO REGIONAL SEMINAR | WOLLONGONG
Elizabeth Medland