interplay between ctp and workers compensation · 2019. 6. 6. · weekly payments from day after...
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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
2019 WIRO REGIONAL SEMINAR | ORANGE
Elizabeth Medland