interplay between ctp and workers compensation · 2019. 6. 6. · weekly payments from day after...

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 May 2019

Project Manager

2019 WIRO REGIONAL SEMINAR | ORANGE

Interplay between CTP

and Workers

Compensation

Elizabeth Medland

31 May 2019

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 May 2019

Motor Accident Injuries Act 2017 (MAIA)

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 May 2019

Which scheme do I choose? s3.35

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 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 | 31 May 2019

Workers compensation recovery (s151Z) and MAIA

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 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 | 31 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 | 31 May 2019

Time Limits – s6.13 & 6.14

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 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 | 31 May 2019

What is a motor accident anyway? s1.9

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 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 | 31 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 | 31 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 | 31 May 2019

“Use” or “operation”

Nominal Defendant v GLG Australia Ltd

[2006] HCA 11

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 May 2019

What if the vehicle is not registered? s1.10

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 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 | 31 May 2019

Minor Injury s1.6

A “soft tissue injury”

or a

“minor psychological or psychiatric injury”

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 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 | 31 May 2019

Minor psychological injury

Includes:

Adjustment Disorder

Acute Stress Disorder

INTERPLAY BETWEEN CTP AND WORKERS COMPENSATION | 31 May 2019INTERPLAY BETWEEN CTP AND

WORKERS COMPENSATION

31 May 2019

Project Manager

elizabeth.medland@wiro.nsw.gov.au

2019 WIRO REGIONAL SEMINAR | ORANGE

Elizabeth Medland