Motor Accident Guidelines

Determination of insurance premiums for third-party policies

Introduction

1.1 These Guidelines provide mechanisms for the regulation of insurance premiums matters under Part 2, Division 2.3 and clause 2 of Schedule 4 of the Motor Accident Injuries Act 2017 (NSW) (the Act). They are issued by the State Insurance Regulatory Authority (the Authority).

Commencement and revocation of previous Guidelines

1.2 This Part of the Guidelines is effective for policies that come into effect on or after 15 January 2024. For policies that come into effect from 15 January 2023 to 14 January 2024, Part 1 of the Motor Accident Guidelines v 9.1 continue to apply.

Definitions

1.3 In this Part of the Guidelines, bonus malus refers to a percentage decrease or increase in the insurer’s base premium using approved risk-rating factors. Bonus has the same meaning as discount and malus has the same meaning as loading in this Part.

Guiding principles

1.4 The primary objects under section 1.3 of the Act relating to a premium framework are to:

(a) promote competition and innovation in the setting of premiums

(b) ensure the sustainability and affordability of the scheme and fair market practices

(c) keep premiums affordable by ensuring that the profits realised by insurers do not exceed the amount that is sufficient to underwrite the relevant risk.

1.5 To promote competition and innovation by insurers, the Authority allows risk-based pricing, but this must be done within limits in order to keep premiums affordable. The premium framework recognises that this liability scheme, which is compulsory and privately underwritten, blends risk-based and community-rated approaches to assist with the object of affordability.

1.6 Filed premiums must be adequate and not excessive (under section 2.22(1)(a) of the Act). The Authority will closely scrutinise filed premiums against the objects of the Act and against any range of premiums for transitional policies it has determined under clause 2(3)(c) of Schedule 4 of the Act.

1.7 In aligning with the competition and innovation objects, the Authority recognises that insurers will pursue their own particular business objectives that will be reflected as an integral part of each insurer’s pricing strategy. On this basis, technical (actuarial) pricing will not be considered in isolation and an explanation by insurers is encouraged for non-technical pricing considerations, including:

(a) business plans and short, medium and long-term growth strategies

(b) response to pricing by competitors

(c) market segmentation and distribution strategies

(d) innovation and efficiencies in their business model.

1.8 The Authority will take into account the objects of the Act by considering both qualitative and quantitative explanations when reviewing insurer filings.

Premium filing process

Filing requirements

1.9 A premium filing under Division 2.3 of the Act must be provided in soft copy and must include:

(a) covering letter

(b) filing report

(c) the Authority’s motor accident filing template

(d) any other additional information reasonably required by the Authority.

Covering letter

1.10 The premium filing covering letter must be signed by the NSW CTP product executive or equivalent office holder of the licenced insurer and include:

(a) the proposed commencement date for the premium and the period nominated by the insurer for the Authority to reject the premium (cannot be less than six weeks)

(b) an executive summary of the filing

(c) the overall average premium

(d) any significant changes to the most recent business plan approved by the Authority impacting competitive strategies or market positioning

(e) any significant rating factor changes

(f) any changes in bonus malus levels

(g) implementation plan detailing how the insurer will meet the proposed commencement date

(h) an outline of the policyholder impact analysis.

Filing report

1.11 Every filing report must include:

(a) a summary of the changes proposed and any changes in business strategy

(b) explanation of each filing assumption change made since the previous filing

(c) completed motor accident filing template commentary and analysis of the estimated effects on the portfolio composition as described in ‘Portfolio analysis’ section below

(d) an analysis of the change in average premium and base premium against the previous filing

(e) signed endorsement of the filing from the NSW CTP Product Executive or equivalent office holder

(f) any other information requested by the Authority.

1.12 Nothing further is required to be included in the filing report if all the following conditions are met:

(a) the expiry date of the filing lodged is within 12 months from the commencement date of the most recent filing approved by the Authority

(b) the change in average premium excluding GST and the Fund levy reported in Schedule 1C of the Authority’s motor accident filing template is less than 4% when compared to the most recent filing approved by the Authority

(c) the change in Base Premium Rate (Class 1 Metro) excluding GST, Fund levy reported in Schedule 1C of the Authority’s motor accident filing template is less than 4% when compared to the most recent filing approved by the Authority.

1.13 If any of the above conditions are not met, the filing report must also include:

(a) how the proposed insurance premiums (excluding the Fund levy and GST, and assuming no policyholders are entitled to any input tax credit (ITC)) were determined by the insurer

(b) the factors and assumptions considered in determining the premiums, how those factors were derived, and any variation relative to the Authority's independent actuary’s costing assumptions (Schedule 1E, provided by insurers in the form specified in Table 1.3), taking into account the insurer’s business mix by class and region and other (claims experience related) factors against those of the industry

(c) an explanation of the non-technical pricing factors where applicable

(d) how the insurer assessed projected future frequency of:

• claims for the industry (inclusive of nominal defendant claims, and by subdivision as set out in Schedule 1E)
• claims for the insurer (by subdivision as set out in Schedule 1E and disclosing the treatment of shared claims and nominal defendant claims).

(e) how the insurer assessed projected future average claim size of:

• claims for the industry (inclusive of nominal defendant claims, and by subdivision as set out in Schedule 1E)
• claims for the insurer (by subdivision as set out in Schedule 1E and including the estimated net effects of shared and nominal defendant claims).

(f) a summary of claim frequency and average claim size (in current values), and resulting cost per policy, by claim component (including nominal defendant), allowing for sharing and net of ITCs, should be included in the filing report. This should reconcile to item 1c in Schedule 1C for claim frequency and indicate the adjustment to claim sizes required to reconcile to item 2b in Schedule 1C.

(g) economic and investment assumptions, including:

• assumed future rates of wage and price inflation
• full yield curve adopted and the single equivalent rate of discount
• assumed future claim payment pattern for the underwriting period covered by the filing specifying whether the basis is current values, inflated or discounted.

(h) superimposed inflation (SI) assumption, including:

• assumed future rates of SI
• disclosure of the single equivalent rate of SI where different rates have been used for different claim segments and/or different rates of SI have been adopted in future years
• an explanation of the approach taken in setting the SI assumptions.

(i) insurer expenses, including average past actual and expected future rates and amounts of:

• acquisition and policy-handling expenses (excluding commission or other remuneration) associated with third-party policies with appropriate explanation provided and a description of the methodology used to allocate overhead expenses
• commission or other remuneration expenses (for the purpose of determination of insurance premium the filed percentage per policy cannot exceed 5% of the proposed insurance premium)
• claims-handling expenses, including an explanation of what is included in this item, and a description of the methodology used to allocate overhead expenses
• net cost of reinsurance.

(j) disclosure of the above past and expected future expenses on a total pool basis as well as on a cost per policy basis for acquisition and policy expenses, and on a per claim basis for claims-handling expenses (for clarity, claims-handling cost per claim expected to arise during the period covered by the filing)

(k) the expense assumptions used and an explanation of how they relate to the above information

(l) proposed profit margin: the percentage of gross insurance premiums intended to be retained as profit, before tax

(m) adjustments to insurer premium to obtain the class 1 metro base premium by disclosing a full explanation of the calculation of the:

• ratio of the class 1 metro premium to the average premium
• average bonus malus factor: commentary should be included where the filed average bonus malus factor varies from the average implied by the expected future number and mix of insured vehicles by vehicle class and rating region at each bonus malus level (as provided in the portfolio analysis)

(n) details of how the percentage loading applied to the nil ITC premium rates to obtain the ITC premium rates was determined

(o) details of how the short-term loading parameters A, B, X and Y were determined

(p) a comparison with the previous filing of the filed average premium and the actual average premium received by the insurer, together with an explanation of the allowance made for non-annual policies in calculating these average amounts, including:

• how the assumptions regarding future experience in the current premium filing differ from the corresponding assumptions in the previous filing by the insurer
• the changes in assumptions and the effect of those changes on the proposed premiums, including reconciliation between the previous and proposed new base premium for a Sydney passenger vehicle for which the policyholder is not entitled to any ITC.

(q)  Insurers must undertake sensitivity analysis on key assumptions that are subject to significant uncertainty to quantitatively illustrate the impact of uncertainty on proposed premiums. Such sensitivity analysis includes the use of scenarios to test the impact of multiple assumptions simultaneously.

• The extent of the variation assumed on key assumptions for sensitivity testing should reflect an alternate reasonable and plausible situation. Insurers must document the results of the sensitivity analysis in the filing report.
• The Authority may provide guidance on the specific assumptions or scenarios to be tested and included in a filing before its submission.

(r) any other matter the insurer considered in determining premiums.

1.14 The Authority may request additional information or amendments to the premium filing.

Rejection of premiums by the Authority

1.15 The Authority may reject a premium filed under Division 2.3, section 2.22 of the Act if it is of the opinion that the premium:

(a) is excessive or inadequate in relation to actuarial advice and to other relevant financial information available to the Authority

(b) does not conform to the relevant provisions of these Guidelines, or

(c) will not fall within the range of premiums determined by the Authority under clause 2(3)(c) of Schedule 4 of the Act, ‘Savings, transitional and other provisions’.

1.16 The Authority will conduct a review of all filings lodged in accordance with Division 2.3 of the Act and these Guidelines. The Authority may also obtain actuarial advice or other relevant financial advice.

1.17 The Authority’s review will consider:

(a) whether a filing is considered incomplete. The Authority will determine completeness by reviewing the documentation, schedules and motor accident filing template required by these Guidelines. The Authority must be satisfied that there is materially sufficient explanation of the assumptions and filed premiums to enable a review of the quantitative and qualitative elements of the filing, and

• if classified as incomplete, the Authority may request further information from the insurer in accordance with section 2.20(7) of the Act, which will mean that time does not run in relation to the period allowed for rejecting the premium until the insurer complies with the Authority’s request, or
• the Authority may request its withdrawal and, if not withdrawn, will exercise its discretion to reject the filing.

(b) whether the premium has been determined in accordance with the process set out in these Guidelines. This will include the requirement to provide additional information regarding the premiums filed and to justify premiums that have been filed.

Special provisions for premiums during the transitional period

1.18 In determining the Authority’s opinion on whether the premium is adequate and not excessive under section 2.22(1)(a) of the Act, the Authority will consider the comparison between its assumptions (in Schedule 1E) and those filed by the insurer.

Premium components and factors

Motor accident schedule of premium relativities

1.19 As part of the motor accident filing template, the Authority will provide a Motor Accident Schedule of Premium Relativities. Insurers must classify vehicles based on this Schedule.

1.20 Insurers must apply the relevant premium relativities that are applicable to the vehicle class and region.

Base premium

1.21 The base premium for each vehicle classification and region must be:

(a) calculated as the class 1 metro vehicle base premium for which the policyholder is not entitled to any input tax credit (ITC)

(b) multiplied by the relativity for the particular vehicle class and region published in the motor accident schedule of insurer premium relativities current at the date the third-party policy begins

(c) divided by 100.

1.22 The nominated base premium is used to define the allowable range of premiums in terms of the limits for bonus malus, the relative premiums for vehicle classifications and regions, and the loading that allows for policyholder entitlement to an ITC. It is equal to:

Where:

• IB_class1metro = The insurer’s base premium for class 1 metro including GST but excluding the Fund levy, calculated as if no policyholders are entitled to any ITC. The Fund levy is the combined total of the Motor Accidents Operational (MAF) Fund levy, Lifetime Care & Support (LTCS) Fund levy and Motor Accident Injuries Treatment & Care (MAITC) Fund levy
• AP = The insurer’s average premium including GST but excluding the Fund levy, calculated as if no policyholders are entitled to any ITC, as shown in the filing assumptions summary sheet (Table 1.2, Schedule 1C)
• insurer premium relativity_i = The premium relativity applicable to the i-th policy, as anticipated to be underwritten over the period of the premium filing based on the motor accident schedule of insurer premium relativities
• bm_i = The bonus malus rate (%) applicable to the i-th policy, as anticipated to be underwritten over the period of the premium filing
• n = The number of policies anticipated to be underwritten over the period of the premium filing.

Ratio of insurer’s average premium to class 1 metro (item 13 in Table 1.2)

1.23 This factor expresses the ratio of the insurer’s average premium based on the insurer’s projected portfolio mix (annual policy equivalent, taking into account the insurer’s vehicle class and region mix of business), relative to the base premium of a class 1 metro vehicle. This is calculated by:

(a) determining the percentage of the insurer’s projected portfolio (based on the number of vehicles) that will be written in each vehicle class and region

(b) multiplying each of the above proportions by the motor accident schedule of premium relativities published by the Authority for the corresponding vehicle class and region

(c) adding up all of the values calculated in (b) above

(d) dividing (c) above by 100.

1.24 The formula for the calculation is:

Where:

• α_k = The proportion (as a %) of the insurer’s projected portfolio (based on vehicle count) for the k-th vehicle class and region
• true premium relativity_k = The premium relativity for the k-th vehicle class and region in the motor accident schedule of insurer premium relativities published by the Authority.

Bonus malus factor (item 14 in Table 1.2)

1.25 This factor expresses the average bonus malus applied by an insurer to its projected annual policy equivalent portfolio (after taking into account the insurer’s vehicle class and region mix of business). This is calculated by:

(a) determining the total portfolio premium (before GST and levies) to be collected, inclusive of the bonus malus rates to be applied, for the portfolio of risks projected to be written by the insurer. This portfolio of risks should take into account the insurer’s mix of business by vehicle class, region and rating factors

(b) determining the total portfolio premium (before GST and levies) to be collected, before the application of any bonus malus rates, for the portfolio of risks projected to be written by the insurer

(c) dividing (a) by (b).

1.26 The formula for the calculation is:

Business plans

Requirements of the business plan

3.1 Under Division 9.2, section 9.18 of the Act, each insurer must prepare and deliver to the Authority a Motor Accident Business Plan (business plan) as soon as practicable after it is requested to do so by the Authority.

3.2 Insurers are to prepare and deliver to the Authority a business plan within the timeframe provided by the conditions of their license. Insurers are also to prepare and deliver a revised business plan before implementing any significant change to the conduct of their third-party insurance business (including but not limited to strategy in respect of claims handling, pricing or product distribution).

3.3 If the insurer operates more than one third-party insurance business (for example, the insurer issues third-party policies under multiple brands), then the insurer must prepare and deliver a business plan covering all of the third-party insurance businesses and any business associated with third-party policies of the insurer either in a single business plan (highlighting where the practices of the businesses/brands differ from one another) or separate business plans for each. For co-labelling or white labelling arrangements, the Insurer’s business plan must include where any operations are different from the arrangements otherwise outlined in the business plan.

3.4 A business plan prepared by a licensed insurer under section 9.18 must include a complete description of the manner in which the third-party insurance business is to be conducted (including but not limited to claims-handling, management, expenses and systems). This includes:

(a) details of the structure and operations of the third-party insurance business and any plans for change within the next 12 months in line with Schedule 3A below

(b) a demonstration of how the insurer’s conduct, culture and appetite for risk meets the needs of customers, the objects of the Act and the Authority’s Customer Service Conduct Principles, in line with Schedule 3B below

(c) a letter from the board of directors of the insurer to the Authority (whether signed by the directors, or on behalf of the directors by an officer authorised to sign on their behalf) confirming present and continuing compliance with Australian Prudential Regulation Authority’s (APRA) Prudential Standard CPS 232 or, if replaced, with the APRA prudential standard addressing business continuity management by authorised general insurers, including the development and maintenance of a business continuity plan.

3.5 The Authority may require further details by notice in writing in order to clarify the business plan.

3.6 Insurers must, on request from the Authority, submit copies of their customer communication templates, including third-party certificates and customer information packs.

3.7 When requested by the Authority, insurers must submit scripts, training manuals and other supporting tools used by sales staff for review and approval. Each insurer must, on request from the Authority, provide other documents related to third-party policies.

3.8 Insurers must amend any document submitted to the Authority if required to do so by the Authority.

Schedule 3A: Operational requirements for insurers

3.9 An insurer’s business plan must include the matters enumerated below relating to the structure and operations of the business, and detail how these comply with the Act and align with its objects.

3.10 A detailed plan of the insurer’s business structure, operations and relevant key performance indicators (and intended changes in the next 12 months), including:

(a) focus areas for the next 12 months and how progress is monitored and evaluated

(b) premiums and policy

(c) pricing strategy and distribution, including third-party agreements

(d) claims and injury management (claims segmentation models, caseloads, claims management strategies, outsourcing and third-party agreements)

(e)  fraud deterrence and prevention under section 6.39 of the Act

(f) internal review and disputes (structure and approach to continuous improvement)

(g) supply chain management including panel arrangements and oversight of non-panel providers (cost, performance and conduct)

(h) use of in-house specialist resources (for example, legal or fraud specialists)

(i) systems management

(j) data quality framework

(k) engagement of staff and customers that aligns with the requirements in Schedule 3B.

(l) An insurer’s business plan must include a summary of the systems and processes in place to support injured people with psychological symptoms or injury. The insurer must demonstrate that it has systems and processes in place to ensure that claims are managed by a case manager, or the case manager is supported by specialist staff, with the skills, knowledge and experience to manage claims involving psychological symptoms or injury.

3.11 A detailed plan covering the insurer’s business structure and operations regarding offshore arrangements.

Schedule 3B: Culture requirements for insurers

3.12 An insurer’s business plan must include the matters enumerated below relating to the alignment of institutional culture with the objects of the Act.

3.13 A definition of the insurer’s target institutional culture.

3.14 A detailed plan of the steps to be taken to maintain or, if necessary, create an institutional culture understood by insurer senior managers and employees that:

(a) meets the objects of the Act

(b) meets the Authority’s Customer Service Conduct Principles below:

• be easy to engage and efficient
• act fairly, with empathy and respect
• resolve customer concerns quickly, respect customers’ time and be proactive
• have systems in place to identify and address customer concerns
• be accountable for actions and honest in interactions with customers.

3.15 A detailed plan of the steps to be taken to embed, monitor and (where appropriate) effect changes to the insurer’s institutional culture as it relates to each of the matters outlined in the above clause. This must include a strategy to report performance in these areas when requested by the Authority.

3.16 Details of:

(a) arrangements for conducting an annual employee engagement survey

(b) processes for assessing the results of employee engagement surveys.

3.17 Details of the:

(a) mechanisms established for personnel to elevate and report concerns about practices within the insurer, even when not making any specific allegation of wrongdoing

(b) processes for assessing such reports and identifying and addressing any unsatisfactory practices.

3.18 Details of:

(a) how the key performance indicators outlined in clause 3.10 (above) applying to personnel engaged in the insurer’s third-party insurance business demonstrate alignment with the target institutional culture

(b) the processes for assessment of personnel against those key performance indicators and the effectiveness of those key performance indicators to influence desired behaviours.

3.19 Details of the processes for:

(a) annual independent assessment of the insurer’s institutional culture as it relates to the matters enumerated in clause 3.14 (above)

(b) development of action items arising out of this assessment

(c) implementation of these action items.

3.20 An explanation of the organisational structures to monitor the effectiveness of, and ensure accountability for, the arrangements, mechanisms, processes and performance metrics enumerated in clauses 3.16 to 3.18 (above). This must include a strategy to report performance in these areas when requested by the Authority.

3.21 An explanation of the governance structures by which the board of directors of the insurer will form a view of the risk culture in the institution and the extent to which that culture supports the ability of the institution to operate consistently within its risk appetite, identifies any desirable changes to the risk culture and ensures the institution takes steps to address those changes.

Complaints

3.22 A complaint is an expression of dissatisfaction made to the insurer or its agent related to its products or services, or the complaints-handling process itself, where a response or resolution is explicitly or implicitly requested.  Insurers must keep a record of all complaints they or any of their agents receive in a complaints register and provide a summary report to the Authority every six months. This report is due within 30 business days of the end of the 30 June and 31 December reporting periods. It should be formatted as set out by the Authority and include a complaints trend analysis of the risks and issues.

3.23 All complaints made to the insurer or its agents in relation to a third-party policy or claim must be handled in a fair, transparent and timely manner.

3.24 A robust complaints-handling process provides the complainant with confidence that they are heard, their feedback is taken seriously, and insurers are accountable for their actions. The insurer must have a documented internal complaint and review procedure, the terms of which must be set out in the insurer’s business plan.

3.25 Information about how to make a complaint and the complaints-handling procedures must be readily available and accessible to all stakeholders.

3.26 Complaints-handling procedures must refer to the rights of the customer to escalate a complaint to the Authority if they are dissatisfied with the insurer’s response to their complaint.

3.27 The insurer must acknowledge all complaints in writing within 5 business days of their receipt. The acknowledgement must include:

(a) if the insurer can resolve the complaint to the satisfaction of the complainant within 5 business days from the receipt of the complaint – the insurer’s written decision resolving the complaint

(b) if the insurer cannot resolve a complaint to the satisfaction of the complainant within 5 business days from the receipt of the complaint – a copy of the insurer’s complaints procedure and the contact details of the representative(s) of the insurer handling the complaint.

3.28 If the insurer cannot resolve the complaint to the satisfaction of the complainant within 5 business days, the insurer must resolve the complaint within 20 business days from the date of receipt and notify the complainant in writing of:

(a) the insurer’s decision and the reasons for that decision

(b) the opportunity to have the complaint considered by a more senior representative of the insurer who is independent of the original decision-maker

(c) information on the availability and the contact details of external complaint or dispute resolution handling bodies (including the Authority) in the event that the complainant is dissatisfied with the insurer’s decision or procedures.

Fraud

3.29 An Insurer’s business plan must include a summary of the processes they have in place to prevent, detect and respond to fraud as detailed below.

3.30 At all stages of the claims management and premium determination process, the insurer should have systems and processes in place to:

(a) prevent fraud - proactively putting into place measures and controls designed to help reduce the risk of fraud from occurring at the outset

(b) detect fraud - designing and implementing controls to uncover instances of fraud or potential fraudulent behaviour

(c) respond to fraud – taking action to mitigate the impact of fraudulent activity.

Information and data integrity

3.31 Information and data integrity is critical to the scheme and to demonstrating insurer performance. Accurate, up-to-date and complete information promotes the credibility and accountability of the scheme and those operating within it.

3.32 At the direction of the Authority, an insurer must provide timely, accurate and complete information, including but not limited to:

(a) insurer claims manuals, policies and procedure documents, including updates as they occur

(b) policyholder and claimant information packs

(c) standard letter templates

(d) self-audit results, including quality assurance reporting

(e) complaints received by the insurer about its handling of matters

(f) policyholder and claimant survey results

(g) training plans and logs, and/or data breaches that affect the privacy of a policyholder, claimant or their family.

3.33 An insurer must:

(a) code the claimant’s injuries by using appropriately trained coders applying the most recent Abbreviated Injury Scale (AIS) Revision (or as otherwise prescribed by the Authority) and claims in accordance with the Authority’s Motor Accident Insurance Regulation Injury Coding Standards and agreed timeframes

(b) provide up-to-date, accurate and complete data to the Universal Claims Database (UCD), in accordance with the Act and the Universal Policy Database (UPD) and the UCD Claims Data Manual, as amended from time to time, or as otherwise required by the Authority

(c) inform the Authority of any data quality issues as soon as the insurer becomes aware

(d) maintain consistency between information on the claim file and data submitted to the UCD and record any changes in accordance with the UCD Claims Data manual, as amended.

3.34 If the Authority becomes aware of any data quality issues, the Authority may request the insurer to resubmit the data and provide information on data quality controls.

3.35 Insurers must correct any errors that are notified through the UCD according to the timeframes for each of the following categories defined in the UCD Claims Data manual:

(a) Tier 0 validation checks for corrupted or wrongly formatted data - next business day

(b) Tier 1 validation checks for data essential to scheme performance measures - 10 business days

(c) Tier 2 and Tier 3 validation checks for all other data - 20 business days.

3.36 Insurers must comply with any Authority requirements for data exchange and centralised claim notification. Insurers must participate in online claims submission as determined by the Authority.

3.37 Insurers must retain digital claims files information and data for a minimum of:

(a) 30 years after the date the claim was made, or

(b) 30 years after the claimant turns 18 years of age, whichever is later.

3.38 Where an insurer notifies customers, claimants, service providers and/or the Australian Information Commissioner of a Notifiable Data Breach (in accordance with the Privacy Act 1988 (Cth)), the insurer must, at the same time, also notify the Authority. The notification to the Authority must:

(a) confirm that the insurer has fully complied with the law in terms of the notification

(b) confirm that the insurer has investigated, or is investigating, where and why the breach occurred

(c) set out what steps are being taken or have been taken to remedy the breach and future breaches

(d) set out what has been, or is being, suggested to rebuild trust with the affected claimants, customers and/or other stakeholders in terms of the handling of their personal and health information.

Self-assessment

3.39 An insurer must undertake self-assessment of its compliance with the Act and Guidelines in its management practices annually or more frequently as directed by the Authority. The self-assessment must comply with the requirements set out in SIRA’s Self-Assessment Tool.

3.40 An insurer must provide an annual self-assessment report to the Authority. This report must include the insurer’s assessment of its compliance with the Act and statutory instruments made under the Act (including these Guidelines), and details of all instances of its failure to comply (non-compliance) with legislative, guideline and Customer Service Conduct Principle requirements.

3.41 The Authority may conduct a review of an insurer’s self-assessment at any time by auditing the insurer’s files.

Student pre-accident weekly earnings

4.59 In making a decision regarding a student’s pre-accident weekly earnings, the matters to be considered in determining the weekly earnings that the person would have received upon being employed on the completion of the course of studies in which the person was a full-time student include:

(a) the course of study being undertaken

(b) pre-accident academic results

(c) published wage data for new graduates relevant to the course undertaken

(d) previous work experience

(e) Australian Bureau of Statistics (ABS) data for age and industry

(f) the individual circumstances of the claimant

(g) any other relevant circumstances.

Post-accident earning capacity (after 78 weeks)

4.60 When determining employment reasonably available to a claimant at any time after the second entitlement period (from week 79 after the motor accident), the matters to be considered include:

(a) the nature and extent of the claimant’s injuries

(b) the claimant’s age, education, skills and work experience

(c) rehabilitation services that are being or have been provided

(d) the nature of the claimant’s pre-injury employment

(e) the claimant’s place of residence at the time of the motor accident

(f) the details given in the claimant’s Certificate of Fitness

(g) the length of time the claimant has been seeking employment

(h) any other relevant circumstances.

Non-compliance with providing evidence of fitness for work

4.61 Before an insurer can suspend weekly payments for failure of the claimant to comply with requirements for evidence as to fitness for work, the insurer must:

(a) contact the claimant (via the claimant’s preferred method of communication) to ensure that the claimant is aware of their duty to provide this evidence

(b) clearly state to the claimant the consequences of not providing the evidence

(c) provide the claimant with a reasonable time within which to comply

(d) if the claimant is a participant in the Lifetime Care & Support Scheme, the insurer must contact the Lifetime Care & Support Authority of NSW before any potential adverse decision is made

(e) provide the claimant with contact details of the Authority.

4.62 If the claimant continues to fail to comply without a reasonable excuse, a suspension notice giving the claimant seven calendar days to comply must be sent in writing.

4.63 The suspension notice must clearly state the insurer’s reasons for suspending weekly payments, actions the claimant must take to avoid suspension of their weekly payments and the claimant’s rights of review. A copy of this notice must be provided to the claimant’s legal representative where the claimant is legally represented.

Notice before benefits discontinued or reduced

4.64 If a decision is made to discontinue or reduce weekly payments, the insurer must give the required period of notice before that decision takes effect, in accordance with Division 3.3, section 3.19 of the Act.

4.65 Notice may be given verbally but must also be given in writing and delivered by electronic or postal means, using the claimant’s preferred method of delivery. The notice must include:

(a) information about the claimant’s rights of review of the insurer’s decision

(b) contact details of the Authority.

4.66 A copy of this notice must be provided to the claimant’s legal representative where the claimant is legally represented.

Claimant’s responsibilities for ongoing weekly payments

Evidence of fitness for work

4.67 A claimant must provide to the insurer a certificate of fitness for work to be eligible for weekly payments. The required form of a certificate given under section 3.15(3) of the Act is a Certificate of Fitness (including the declaration of employment).

4.68 The first certificate of fitness for work must be given by the claimant’s treating medical practitioner.

4.69 A second or subsequent certificate of fitness must be in a form approved by the Authority and given by:

(a) a medical practitioner, or

(b) if the injured person is receiving medical or related treatment for the injury by a physiotherapist or psychologist who is appropriately qualified — the physiotherapist or psychologist.

• In this clause, an appropriately qualified physiotherapist or psychologist is one with general registration under the Health Practitioner Regulation National Law (NSW) No 86a.

(c) If a subsequent certificate covers a period that overlaps wholly or in part with a period covered by an earlier certificate, the later certificate prevails for the whole of the period covered by the later certificate except to the extent that the later certificate relates to a period before the later certificate was provided.

(d) The insurer that receives a certificate of fitness for work given by a physiotherapist or psychologist must, as soon as possible after receiving the certificate, give a copy of the certificate to the injured person’s treating medical practitioner.

Change in circumstances

4.70 A claimant must notify an insurer of a change in circumstances, in accordance with Division 3.3, section 3.18(1)–(2) of the Act. Initial notice may be given verbally; however, notice must also be given in writing, which may include documentary evidence, such as payslips or certificates of fitness for work depending on the change notified. If requested, other documentary evidence or written notice must be provided to the insurer as soon as possible by the claimant.

Residing outside of Australia

4.71 Division 3.3, section 3.21(1)–(2) of the Act outlines details for weekly statutory benefits to claimants residing outside Australia. The claimant must submit a Certificate of Fitness (including declaration of employment) from a treating medical practitioner every three months to establish their identity and continued loss of earnings.

Minimising loss

4.72 The claimant must do all such things as may be reasonable and necessary for their rehabilitation.

4.73 If the claimant does not take all reasonable steps to minimise loss caused by the injury resulting from the motor accident as per Division 6.2, section 6.5(1)–(3) of the Act, the insurer is authorised to suspend weekly payments in writing, but only if the insurer contacts the claimant to ensure that the claimant:

(a) is aware of their duty to minimise loss

(b) understands what is expected of them to comply with the duty

(c) understands the consequences of failing to comply

(d) has had a reasonable opportunity to comply

(e) has the Authority’s contact details.

4.74 If the insurer considers that the claimant has had a reasonable opportunity to comply with the duty but has failed to do so, a suspension notice giving the claimant 14 days to comply must be given.

4.75 The duties of the claimant must be defined in the notice. The insurer may provide notice by phone or in person; however, the notice must be confirmed in writing to the claimant.

4.76 Insurers must contact the Lifetime Care & Support Authority before making adverse decisions regarding compliance for those claimants engaged in the Lifetime Care & Support Scheme or with severe injuries.

Treatment, rehabilitation, care and vocational support

Treatment before a claim is made

4.77 The insurer may approve access to treatment before a claim is made but after notification of injury has been given. This may also apply where a notice of claim has not included all required information and documents and the insurer is waiting for further information from the claimant.

4.78 Any treatment approved before a claim is made is approved at the insurer’s discretion and will only be approved within the first 28 days from the date of the motor accident. However, if further treatment is required after 28 days, a claim for statutory benefits must be made by the injured person. The insurers’ and claimants’ obligations about treatment, rehabilitation and vocational training are detailed in Division 3.3, section 3.17 and Division 6.2, section 6.5(1)–(3) of the Act.

Recovery plans

Recovery approach

4.79 People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant’s individual circumstances and needs, providing support based on best practice and a commitment to early and appropriate treatment and care.

4.80 The insurer should apply the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services, which sets out five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services:

(a) measure and demonstrate the effectiveness of the treatment

(b) adopt a biopsychosocial approach – consider the whole person and their individual circumstances

(c) empower the injured person to manage their recovery

(d) implement goals focused on optimising function, participation and return to work or other activities

(e) base treatment on the best available research evidence.

4.81 Consideration for service requests should also include Guidelines developed by the Authority, for example:

(a) the Whiplash Guidelines for the management of acute whiplash-associated disorders for health professionals

(b) the Neuropsychological Assessment of Children & Adults with Traumatic Brain Injury Guidelines.

Screen and assess risk of poor recovery

4.82 A claimant must be screened initially for risk of poor recovery and opportunities for early intervention within three business days of lodgement of their claim. This must include direct contact with the claimant where available and consideration of recent information by the treating doctor. The outcome of this screening must be recorded on the claimant’s file.

4.83 Where a claimant is identified to be at or above a medium risk of poor recovery, the insurer must take action to support the claimant through the appropriate internal claims management stream. The insurer should conduct a comprehensive assessment to determine the relevant actions to address identified risks. The outcome of this assessment must be integrated into the claimant’s recovery plan.

4.84 The insurer should regularly engage with the claimant and stakeholders involved to review progress and continue to assess and address risk of poor recovery. The outcome must be recorded on the claimant’s file and integrated into the recovery plan.

4.85 The insurer must screen for and identify claims where an injured person is psychologically vulnerable and, if such a risk is identified, promptly facilitate appropriate support.

(a) Where this risk is only identified after a recovery plan has been implemented, the insurer must update the recovery plan at the earliest possible opportunity.

Recovery plan

4.86 All claimants must have a tailored recovery plan with the following exceptions:

(a) where the claimant is performing their pre-injury duties

(b) where the claimant is performing their usual activities

(c) where the claimant is part of the Lifetime Care & Support Scheme

(d) where the claim is denied

(e) where a claimant has returned to their pre-injury duties and activities within 28 days of the claim being made.

4.87  The recovery plan will include intervention related to treatment and the injured person’s return to work and activity goals. The recovery plan may simply monitor treatment progress. It need not incorporate return to work support or vocational retraining where full return to work or other activities has been achieved.

4.88 The recovery plan must be established, in consultation with the:

(a) claimant who has an obligation under the Act to minimise loss and participate in reasonable and necessary treatment and care and rehabilitation

(b) recent status of the claimant from the claimant’s treating doctor

(c) claimant’s employer, where the claimant has authorised contact with the employer and the employer elects to be part of recovery, and to the maximum extent that their cooperation and participation allows

(d) any treating clinicians or therapists as appropriate.

4.89 An insurer must identify vocational support needs to support recovery at work and as far as possible, ensure that any vocational support provided or arranged under an individual’s recovery plan is reasonable and necessary to support the claimant’s return to work or other activities.

4.90 An insurer must fulfil its obligations under any recovery plan they have established for a claimant.

4.91 The recovery plan must be:

(a) developed in consultation with the claimant

(b) completed within 28 days of the claim being made or within 28 days of the claimant’s initial discharge from hospital in circumstances where the claimant has been admitted to hospital within two days of the date of the motor accident and remained in hospital for a period of not less than three continuous weeks, whichever is the later

(c) reviewed no less than at 12 weekly intervals or as pertinent changes occur

(d) followed up with the claimant regularly.

4.92 Where a claimant fails to comply with a recovery plan that has been developed with and provided to them, the insurer must provide notice to the claimant that weekly payments may be suspended during the period of non‑compliance in terms of Division 3.3, section 3.17(2) of the Act. See Division 3.3, section 3.19 of the Act for required notice periods when discontinuing weekly payments.

Development of a recovery plan

4.93 When developing a personalised recovery plan with a claimant, an insurer must take into account:

(a) the nature of the injury and the likely process of recovery

(b) the claimant’s pre-accident employment and usual activities

(c) treatment and rehabilitation needs, including the likelihood that treatment or rehabilitation will enhance earning capacity and any temporary incapacity that may result from treatment

(d) any employment engaged in by the claimant after the accident

(e) any Certificate of Fitness provided by the claimant

(f) the claimant’s, education, literacy including English literacy, training, skills and experience

(g) the age of the claimant

(h) accessibility of services within the claimant’s residential area

(i) the injured person’s psychological capacity (for example, concentration, memory, perception, mood, fears) when developing a recovery plan.

(j) any other relevant matters including non-accident-related disability or illness and carer responsibilities.

Minimum requirements in recovery plans

4.94 Within the recovery plan that is developed with and sent to both the claimant and their nominated treating doctor, the following details must be included at a minimum:

(a) name of claimant

(b) claim number

(c) date of injury

(d) current need for treatment and care and psycho-social support, being provided (including vocational and community support where relevant)

(e) likely future need for treatment and care and psycho-social support , being provided (including vocational and community support where relevant)

(f) current fitness for work and/or usual activities

(g) expected fitness for work and/or usual activities with milestones

(h) obligations of the claimant

(i) consequences for the claimant if they do not adhere to the recovery plan

(j) contact details of the insurer representative

(k) what action the claimant can take if they disagree with the recovery plan.

4.95 The recovery plan may be provided to all stakeholders including treating practitioners as deemed appropriate.

Obligations of the claimant

4.96 The claimant must agree to participate in the recovery plan and must, when requested to do so by the insurer, nominate a treating medical practitioner who is prepared to participate in the development of and in the arrangements under, the recovery plan.

4.97 The claimant may change their nominated treating practitioner if required due to, for example, the claimant moving house or their doctor leaving the area. The claimant needs to advise the insurer of any change and the reasons for the change.

4.98 A medical practice may be nominated as a treating medical practitioner for the purposes of a recovery plan. Such a nomination operates as a nomination of the medical practitioners of the practice who may treat the claimant from time to time. A reference in this section to the nominated treating doctor is a reference to the medical practitioners of the practice.

4.99 The claimant must authorise their nominated treating medical practitioners to provide relevant information to the insurer for the purposes of a recovery plan.

Treatment and care decisions

Limits on treatment and care expenses

4.100 In terms of section 3.31(4) of the Act, the limit is the applicable Australian Medical Association (AMA) rates at the time the treatment/service is provided.

Facilitating referrals

4.101 An insurer who has identified a claimant requiring treatment, rehabilitation and attendant care services must facilitate referral to an appropriate treatment provider (including vocational provider, if appropriate) within 10 days, with the claimant’s agreement.

4.102 The insurer must refer the claimant to an appropriate service provider reasonably accessible to the claimant.

4.103 If the claimant expresses a preference for a particular provider, the insurer must facilitate the referral of the claimant to that provider subject to the insurer is satisfied as to the suitability of that provider. If the insurer determines that the claimant’s preferred service provider is not suitable, the insurer must notify the claimant of the reasons for its decision and refer the claimant to an appropriate service provider reasonably accessible to the claimant.

4.104  Wherever possible, the insurer must use rehabilitation providers with expertise in managing psychological injury if return to work or other activities is likely to be delayed by the impacts of a psychological injury.

Determining requests

4.105 If the insurer receives the claimant’s request for the payment of treatment or care services, it must make a decision and advise the claimant and relevant service provider in writing of its decision as soon as possible but no later than 10 days from receipt of the request, and

(a) if approved:

• state the costs the insurer has agreed to meet
• pay the account as soon as possible but within 20 days of receipt of an invoice or expense
• advise the claimant of the insurer’s obligation to pay all reasonable and necessary costs and expenses – including travel expenses to attend approved treatment, rehabilitation services or assessments, including all services or assessments conducted by a medical assessor of the Personal Injury Commission – as soon as possible (no later than 20 days after receiving the account or request for reimbursement).

(b) if declined, in whole or in part, provide:

• the reasons for the decision with reference to the information relied upon in making the decision.
• a list of all information relevant to the decision, regardless of whether the information supports the decision, including copies of all listed information
• an explanation of the insurer’s internal review process, including the timeframe in which an application for internal review must be made and/or right to make an application to the Personal Injury Commission
• information on how a claimant may make a complaint with the Independent Review Office (IRO), including the IRO’s contact details.

(c) if the insurer has made a decision to decline the payment of treatment and care because further information is required,

• notify the claimant or relevant service provider of what further information is required and give the claimant or service provider or both a reasonable opportunity to provide the information
• outline the steps the insurer has previously taken to obtain the information

4.106  If requested by the claimant or the claimant’s nominated treating doctor (subject to the claimant’s authority), the insurer must provide the nominated treating doctor with a copy of any decisions relevant to the claimant’s treatment and care. The claimant can revoke the authority at any time by notifying the insurer.

4.107 Unless otherwise requested  by the claimant, the insurer must provide the claimant with copies of all correspondence with the claimant’s treating practitioner, or

(a) in respect of oral  communication with the nominated treating doctor,  the insurer is to give the claimant written notification of the date or dates of the communications, the matters discussed and the outcome of the communication.

Claims involving a death

4.108 Claims involving a death of a person must be managed in a proactive, respectful  and sensitive manner

4.109 The insurer must prioritise the making of the liability decisions in these claims and the prompt payment of statutory benefits to minimise delay and uncertainty.

4.110 When the insurer is notified of a claim related to an accident in which a person has died, it must contact the claimant or their nominated representative without delay to advise them of the insurer’s role, as well as the availability of CTP Assist to support the process of making a claim.

4.111 (omitted).

Verification of expenses

4.112 Where an invoice is issued to the insurer directly from a treatment or care provider, the following should be included on the invoice:

(a) the claimant’s first and last name

(b) the claim number allocated by the insurer

(c) payee details

(d) the Medicare provider number, if relevant

(e) the Australian Business Number (ABN) of the provider

(f) the name of the medical practitioner or service provider

(g) the date of the service (the date of invoice must be on the day of or after last date of service listed on the invoice)

(h) the payment classification code from the Authority or AMA item number, where applicable

(i) the service cost for each payment classification code from the Authority or AMA item number, where applicable

(j) the service duration, where applicable.

4.113 These provisions do not apply to reimbursement for treatment and/or expenses to the claimant. These expenses should be reimbursed to the claimant by the insurer on provision of a receipt confirming the expenses incurred, where the insurer has provided pre-approval and/or the expenses are reasonable and necessary in the circumstances. Insurers should request details of regular service providers to establish direct billing and reimbursement between the insurer and provider to reduce the financial burden on the claimant.

Making a damages claim

Time for making a damages claim

4.114 Division 6.3, section 6.14 of the Act provides for the timeframes in which to make a claim for damages.

Request to concede degree of permanent impairment

4.115 When the insurer receives a request by the claimant to concede that the injured person’s degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%, the insurer must accept or decline the request and notify the claimant of this decision within 90 days of receipt.

4.116 The insurer must acknowledge the request within 14 days of receipt. The acknowledgement must include:

(a) any request for relevant information from the claimant required to make an assessment of the injured person’s degree of permanent impairment

(b) the due date for providing a decision, and the claimant’s right to request an internal review if the decision is not provided by this due date.

4.117 The notification of the insurer’s decision must include:

(a) the insurer’s reasons for its decision

(b) the claimant’s right to request an internal review of the decision.

4.118 If the insurer fails to either accept or decline the request and notify the claimant within 90 days, the insurer’s decision is taken as declining to concede that the injured person’s degree of permanent impairment is greater than 10%, and the claimant may request an internal review of that decision.

Late damages claims – specific requirements

4.119 If the insurer does not accept that the claimant’s explanation for the delay in lodging a claim is full and satisfactory, the insurer must explain the reasons for its decision, including informing the claimant of the matters or grounds upon which is does not consider the explanation to be full or satisfactory or both.

4.120 The insurer must not delay its investigation of the claim including each of the elements of liability on the basis that the claim is lodged late.

4.121 When exercising discretion relating to late claims (received by the insurer more than three years from the date of the accident or Nominal Defendant claims received by the Authority more than three years from the date of the accident), the insurer must act reasonably and in accordance with its duties to resolve claims justly and expeditiously. The insurer should not delay the progress of claims by relying on technical defences or minor procedural defects or irregularities.

Notice of a damages claim

4.122 A notice of a damages claim is made when an insurer receives a signed Application for Damages Under Common Law form and all information required within the Application for Personal Injury Benefits form.

4.123 The notice of claim must contain the following information:

(a) for a damages claim – the CTP Green Slip claim form – Application for damages under common law, containing the information relevant to the claim as set out in Table 4.5 of Schedule 4.1 (below)

(b) for notice for a compensation to relatives claim – the CTP Green Slip claim form - Application to compensate relatives containing the information relevant to the claim as set out in Table 4.4 of Schedule 4.1 (below).

4.124 A claimant must provide a signed authority with the notice of claim authorising the insurer to release information and documents to relevant parties and obtain information and documents relevant to the claim.

Liability decisions in a damages claim

4.125 When the insurer makes a determination of liability under section 6.20 of the Act, it must notify the claimant of its decision in writing. The notice must be clearly identified as a Liability Notice – Claim for damages, and must explain the insurer’s decision to admit or deny liability, including:

(a) whether its insured driver or owner owed the claimant a duty of care and whether they breached that duty

(b) whether the claimant suffered loss, injury or damage as a result of the insured’s breach of duty

(c) a reference to the nature and the source of the evidence that supports the allegation

(d) if liability is admitted for only part of the claim, sufficient detail to ascertain the extent to which liability is admitted with reference to the nature and the source of the evidence that supports the allegation

(e) if the insurer alleges contributory negligence, the degree of contributory negligence it says can be attributed to the injured person and the reasons for that allegation, with reference to the nature and the source of the evidence that supports the allegation

(f) an explanation of the consequences of the decision, including any effects on the claimant’s entitlements

(g) explanation of the review process, including the timeframe in which an application for review must be made

(h) explanation that the claimant may seek further information from the insurer or the Authority and/or a lawyer to understand the decision and rights of review.

4.126 The notice Liability Notice – Claim for damages must also contain copies of all the information relevant to the decision, regardless of whether the information supports the decision. The insurer must provide copies of all listed information to the claimant regardless of whether the information has previously been provided to the claimant.

(a) This requirement does not apply to a claim for damages under the Compensation to Relatives Act 1897 if the insurer admits liability for the claim.

Claimant failure to provide relevant particulars – damages claim

4.127 Under Division 6.4, section 6.26 of the Act, if a claimant has failed without reasonable excuse to provide the insurer with all relevant particulars of their claim within two years and six months, insurers may send a Direction to Provide Particulars form.

4.128 Before making a request for further information, the insurer must take into account all relevant information already available, including any information from a related statutory benefits claim.

Non-economic loss – specific requirements

4.129 The insurer must make decisions relating to non-economic loss based on all the available information and documents, consistent with the facts and in accordance with the law. For example, the insurer should concede an entitlement to non-economic loss when it is in possession of health service provider examination reports that indicate that a claimant’s WPI is greater than 10%.

4.130 The insurer must in every case, regardless of whether the claimant makes a damages claim for non-economic loss:

(a) clearly indicate that it has determined whether or not the claimant is entitled to non-economic loss

(b) when a claimant claims to be entitled to non-economic loss but the insurer disagrees, clearly explain the reasons and detail any medical information considered in the course of making its decision that the injured person’s degree of permanent impairment is not greater than 10%

(c) ensure that the explanation is sufficient to enable the claimant to make an informed decision about whether to accept the insurer’s decision

(d) where a claimant has sufficiently recovered to enable the claim to be quantified, and the insurer is unable to determine whether the claimant’s degree of permanent impairment is greater than 10%, refer the matter to the President of the Personal Injury Commission for assessment.

Reasonable offers of settlement and finalising claims

4.131 In acting to resolve a claim justly and expeditiously, insurers should continually review and identify whether a claimant who is eligible for economic and/or non-economic loss has sufficiently recovered to enable quantification of the claim, and if so, make a reasonable offer of settlement. A reasonable offer is one that is based on the facts and evidence, and is reflective of the injuries and losses the injured person has suffered as a consequence of the motor vehicle accident.

4.132 The insurer must make a reasonable offer of settlement to the claimant, as required by Division 6.4, section 6.22 of the Act, unless it wholly denies liability for the claim. The offer of settlement must be recorded on the claim file.

4.133 The insurer’s initial and final offer of settlement must:

(a) be set out in writing to the claimant (and copied to their legal representative where the claimant is represented)

(b) list amounts (including zero) offered for economic loss and non-economic loss separately or include a method for determining an amount of damages

(c) where the insurer admits liability for only part of the claim, include details necessary to determine the extent to which liability is admitted

(d) where applicable, identify as a separate amount any allowance for the claimant’s legal costs and disbursements

(e) where applicable, identify any deductions that have been made or are likely to be made, and how they have been determined or calculated

(f) include a reference to the insurer’s duty under the Act to make an offer of settlement on a damages claim.

4.134 Under section 6.23(2) of the Act, a damages claim cannot be settled until the Commission has approved it, unless the claimant is legally represented. Where the claimant is not legally represented, the insurer must proactively approach the Personal Injury Commission to have the settlement approved.

Confirming payment of a settlement amount

4.135 When a damages claim settles, the insurer must notify the claimant confirming:

(a) the total settlement amount

(b) to whom the payment has been made

(c) the method of payment (for example, cheque or EFT)

(d) the date the payment was made

(e) if the claimant has engaged legal representation, the insurer must also provide them with a copy of the correspondence.

Nominal Defendant claims

4.136 The insurer acting for the Nominal Defendant in a claim regarding an unidentified motor vehicle will explain to the claimant in writing that they are required to make due inquiry and search to ascertain the identity of the vehicle alleged to have been at fault in the accident.

4.137 The insurer will promptly advise the claimant in writing whether the claimant has, in the insurer’s view, satisfied the requirement for due inquiry and search, and:

(a) if the insurer determines that the requirement has not been met, it must provide details of the deficiency and how the claimant could go about satisfying the requirement.

4.138 In statutory benefits claims made on the Nominal Defendant, the insurer must make the liability decision within the timeframes specified under section 6.19(1)-(2) of the Act. If the insurer has not yet determined due inquiry and search at the time the liability decision is due, the insurer must inform the claimant in the notices of liability that it will make:

(a) a decision on whether due inquiry and search has been established

(b) a further liability decision once it is satisfied that due inquiry and search has been established.

4.139 The insurer will promptly advise the claimant in writing whether the claimant has, in the insurer’s view, satisfied the requirement for due inquiry and search.

4.140 An insurer’s decision must be based on all available information and should be consistent with the facts. Where the insurer alleges that the requirement has not been met, the insurer must include sufficiently detailed written reasons for its decision and details of the deficiency and manner by which the requirement could be satisfied by the claimant.

4.141 The insurer must perform as a model litigant in Nominal Defendant claims, which includes acting with complete propriety, fairly, and in accordance with the highest professional standards.

Investigations

4.142 The insurer should always consider whether investigations are required in the first instance and, if so, ensure that such investigations are appropriate with respect to the issues arising in the claim. The insurer must only undertake investigations when required information cannot be obtained by another less intrusive means.

4.143 If the insurer deems that an investigation is required, it must promptly investigate liability for a claim by requesting information and documents about the claim in a timely manner, and regularly following up any requests.

Factual Investigations

4.144 Factual investigations may be undertaken by or on behalf of the insurer to investigate and report on the circumstances of the motor accident and facts of the claim. Factual investigations may be used to gather information to assist the insurer in its management of the claim and making decisions about liability and the claimant’s entitlements to statutory benefits and damages. Factual investigations are not to provide an opinion on medical aspects of the claim.

4.145 If a factual investigation involves interview with a claimant, the factual investigation must comply with Part 15 of the Insurance Council of Australia’s ‘General Insurance Code of Practice’ (the Code) subject to the following modifications:

(a) clauses 194(c), 196, 197, 198, 199, 202(e), 203, 231(g), 232, 233, 234, and 235 do not apply to motor accident claims under the Act

(b) the maximum time for a single interview as referred to in clause 214 of the Code is to be read as 120 minutes not 90 minutes

(c) the Guidelines take precedence over the Code to the extent of any inconsistency.

4.146 Where the insurer engages an external investigator to conduct the investigation, it must ensure that the investigator holds a valid licence under the Commercial Agents and Private Inquiry Agents Act 2004 (NSW) 4, and conducts the investigation in compliance with that Act.

Surveillance

4.147 The insurer must conduct surveillance of the claimant only when there is evidence to indicate that the claimant is exaggerating an aspect of the claim or providing misleading information or documents in relation to a claim, or where the insurer reasonably believes that the claim is inconsistent with information or documents in the insurer’s possession regarding the circumstances of the accident or medical evidence.

4.148 The insurer must only conduct surveillance in places regarded as public or where the claimant, while on private property, is observable by members of the public going about their ordinary daily activities.

4.149 The investigator acting on behalf of the insurer must not actively interfere with the claimant’s activities while under observation or interact with the claimant so as to have an impact on their activities.

4.150 The insurer or investigator acting on behalf of the insurer must not engage in any acts of inducement, entrapment or trespass when carrying out factual investigations and/or surveillance activities. Inducement or entrapment can include social media activities such as sending friend requests with the intention to induce, entrap or deceive.

4.151 The insurer must be sensitive to the privacy rights of children, take reasonable action to avoid unnecessary video surveillance of children and, where possible, hide images of children in reports that contain still photographs of children. Persons who are under the age of 18 years are regarded as children.

4.152 Where the insurer sends surveillance material to a third party, it must inform that party about confidentiality and relevant privacy obligations.

4.153 The insurer must ensure that, where possible, investigation reports and recordings are redacted or censored to minimise the likelihood of uninvolved individuals being identifiable, and recordings and any other materials collected are securely stored.

4.154 Where the insurer becomes aware that a person has a mental health condition, surveillance of that person is only permitted if the insurer:

(a) clearly identifies any mental health conditions in the request for surveillance

(b) develops a risk management plan assessing the mental health conditions and identifying risk mitigation strategies that reduce the potential for impact on these conditions, and ensures that surveillance is conducted in line with this plan.

• Risk mitigation strategies may include, but are not limited to, restriction of mobile forms of surveillance and greater use of static or passive forms of surveillance, use of multiple investigators and/or increased rotation of investigators, consideration of investigator characteristics (e.g., gender), and reduction of surveillance hours.
• Note: Insurers have obligations under the Privacy Act 1988 (Cth) and the Health Records and Information Privacy Act 2002 (NSW) that must be complied with, including when undertaking investigations through surveillance.

Medical examinations

4.155 Before arranging a medical examination, the insurer must inquire with the injured person’s treating medical, rehabilitation and health service practitioners promptly to try to resolve the issue. The insurer must provide copies of all documents obtained in this process to the injured person as soon as possible (and in any event within 10 working days of receipt) unless the treating medical, rehabilitation or health service practitioner indicates otherwise.

4.156 The insurer should not arrange unnecessarily frequent examinations. The request to arrange a medical examination should be reasonable in the circumstances and, where applicable, the medical examination should be conducted by the same examiner who previously examined the claimant if they are available.

4.157 A claimant is required to comply with the insurer’s request to undergo a medical examination unless it is unreasonable, unnecessarily repetitious or dangerous. A request will ordinarily be considered reasonable if:

(a) the treating practitioner has not responded to a request for information from the insurer,

(b) information provided by the treating practitioner to the insurer is inadequate, or

(c) the insurer’s communication with the treating practitioner cannot resolve a dispute.

4.158 The insurer must retain evidence to support its decision to request a medical examination and provide this information to the Authority on request.

4.159 For the purpose of medical examinations, an insurer may use the Authorised Health Practitioners list on the Authority’s website to search for health practitioners who are authorised under Division 7.7, section 7.52(1)(b) of the Act to give evidence when required during the management of a claim.

4.160 If practitioners on the list are unavailable for an appointment within the required timeframes for the issues to be assessed, an independent medical examiner with availability chosen by the insurer or claimant may be proposed to the Authority for authorisation, following the guidelines prescribed in ‘Part 8 of the Motor Accident Guidelines’.

4.161 A rehabilitation service provider cannot be deemed a health practitioner with regard to Division 7.7, section 7.52 of the Act.

Schedule 4.1 CTP Green Slip Claim Forms

Table 4.1: Application for personal injury benefits

Table 4.2: Online application for personal injury benefits

Table 4.3: Application for funeral expenses

Table 4.4: Application to compensate relatives

Table 4.5: Application for damages under common law

Acknowledgements

The first version of these Guidelines was developed for the-then NSW Motor Accidents Authority by a consortium comprising Dr Jim Stewart, Associate Professor Ian Cameron, Associate Professor Malcolm Sim and Professor Peter Disler. The bulk of the task was undertaken by seven clinical reference groups, whose members are listed below. Particular mention should be made of the extensive contributions of Dr Dwight Dowda, Professor Sydney Nade and Dr Julian Parmegiani.

A number of Victorian clinicians with experience in the use of the AMA Guides (second and fourth editions) have provided valuable assistance. They are Dr Neil Cullen, Dr Michael Epstein, Dr Peter Lothian, Dr Gary Speck, Dr Richard Stark and Dr Nigel Strauss. Dr Alan Rosen provided valuable comment on the PIRS.

Introduction

7.1 The dispute resolution process for motor accidents occurring on and after 1 December 2017 is set out in Part 7 of the Act. The process begins with an internal review by the insurer. If the internal review does not resolve the matter, an application maybe be made to the Personal Injury Commission.

7.2 This Part of the Guidelines is made under sections 6.23, 7.9, 7.12, 7.41, 7.47 and 10.2 of the Act. It provides for matters relating to insurer internal review. It also provides for some matters relating to legal incapacity and appointed representatives, merit review, miscellaneous claims assessments and restrictions on settlement of damages claims at the Personal Injury Commission.

7.3 Other matters relating to practice and procedure at the Personal Injury Commission are governed by the Personal Injury Commission Act 2020, Personal Injury Commission Rules 2021 and Procedural Directions issued by the President of the Personal Injury Commission. The Personal Injury Commission may be contacted for further information by:

Web: www.pi.nsw.gov.au

Telephone: 1800 PIC NSW (1800 742 679)

Email: [email protected]

Insurer internal review

Requesting an internal review

Time for requesting an internal review

7.4 A claimant may request an internal review of a decision within 28 days of receiving notice of the decision from the insurer.

7.5 If a claimant requests an internal review more than 28 days after receiving notice of the decision from the insurer, the insurer may decline or accept the application. The insurer must provide the claimant with a written notice of its decision to decline a late application for internal review. The notice must state that the claimant may refer a dispute of a reviewable decision of the insurer to the Personal Injury Commission for assessment because the insurer has declined to conduct an internal review.

Application requirements

7.6 A claimant may request an internal review by the insurer by:

(a) application form – completing the approved form for requesting an internal review by the insurer and delivering it to the insurer by post, email, facsimile or in person

(b) online application process – completing an approved online application for requesting an internal review by the insurer

(c) letter – contacting the insurer by letter and requesting an internal review

(d) telephone – contacting the insurer by telephone and requesting an internal review.

7.7 A request for an internal review of an insurer’s decision must include:

(a) all requirements specified in any paper or online application form approved by the Authority for making a request for an internal review

(b) details of:

• the decision of the insurer that is being referred for internal review
• the alternative decision sought in the internal review
• issues under review – the elements of the original decision that the claimant wishes to be reviewed
• the reasons the claimant believes the decision should be changed
• any additional documentation or materials that the claimant considers relevant to a review of the decision.

7.8 A claimant may withdraw a request for an internal review of a decision by letter, facsimile, telephone, email, or in person at any time before the insurer sends notification of the internal review decision to the claimant. The insurer must confirm the withdrawal of the request for an internal review in writing to the claimant.

Responding to an internal review application

7.9 The insurer must acknowledge receipt of the application for internal review by notifying the claimant within two business days of receiving the application.

7.10 The notification must be in writing and must be delivered either by post, email, online electronic delivery, or a combination of these methods, depending on the claimant’s preference.

7.11 The notification from the insurer must advise the claimant whether the insurer accepts that it can conduct an internal review of the decision, or alternatively whether the insurer does not accept it can conduct an internal review. The notification must include the date that the application was received and the date the internal review decision is due to be issued.

7.12 If the insurer accepts that it can conduct an internal review of the decision, the insurer must advise the claimant as soon as practicable, and in any event within seven days of receiving the application, of:

(a) issues under review – the elements of the original decision that the insurer understands are under review

(b) internal reviewer – the person allocated as the internal reviewer to conduct the internal review

(c) additional information – any additional relevant documents or information required from the claimant for the internal review, and any additional information or documentation that the insurer has that is relevant to the internal review and has not previously been provided to the claimant

(d) how to make contact – how the claimant can contact the insurer about the internal review, and how the claimant can contact the advisory service about the internal review.

7.13 If the insurer does not accept it can conduct an internal review, the insurer must notify the claimant in writing as soon as practicable and in any event within seven days of receiving the application of:

(a) reasons for decision – brief reasons for the decision to decline to conduct the review

(b) the internal reviewer – the person who decided to decline to conduct the review

(c) how to make contact – how the claimant can contact the insurer about the decision to decline to conduct the review, and how the claimant can contact the advisory service about the decision

(d) next steps for the claimant – the options available to the claimant if they disagree with the decision, including that they can seek legal advice as to the options available

(e) that the claimant may apply to the Personal Injury Commission to dispute a reviewable decision of the insurer because the insurer has declined to conduct an internal review.

7.14 If an insurer accepts it can conduct an internal review and then subsequently determines it cannot do so, the insurer must notify the claimant as soon as practicable and in any event within seven days of its decision to decline the application in accordance with the notification requirements set out above.

The internal review

The internal reviewer

7.15 An internal reviewer:

(a) must have the required skills, experience, knowledge and capability to conduct the internal review in accordance with the objects of the Act

(b) must not have been involved in making or advising on the insurer’s initial decision or previously managed any aspect of the claim, or be someone the initial decision-maker reports to or manages directly

(c) may have previously conducted an internal review for the same claim.

The internal review process

7.16 The internal review must be conducted in the way that best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular internal review, which may include undertaking the review on the papers, using teleconferences, video conferences or face-to-face meetings as appropriate.

7.17 The internal reviewer may determine the internal review procedure, is not bound by the rules of evidence and may inquire into any matter relevant to the issues under review in such manner as the internal reviewer thinks fit.

7.18 The claimant may submit new information to the insurer to be considered by the internal reviewer.

7.19 The internal reviewer may consider information that was not provided before the decision being reviewed was made, under Division 7.3, section 7.9(6) of the Act. The insurer must give any such information to the claimant if it has not already been provided to the claimant. The claimant must also be given the opportunity to respond to the information.

7.20 The insurer may reasonably request information from the claimant for the purposes of the internal review, which the claimant must provide, under section 7.9(2) of the Act.

7.21 If the claimant does not provide the insurer with the information reasonably requested, the insurer may decline to conduct an internal review.

The internal review decision

7.22 In determining an internal review application, the internal reviewer must review the matter on the merits and make their decision having regard to the material before them, including the relevant factual material and applicable law.

7.23 In determining an internal review application, the internal reviewer may decide to:

(a) affirm the original decision

(b) vary the original decision

(c) set aside the original decision and make a decision in substitution for the original decision.

7.24 The insurer must notify the claimant of the results of the internal review within 14 days as required by section 7.9(4) of the Act, unless the Guidelines provide for particular circumstances in which an insurer has a longer period.

7.25 The table below provides for the circumstances in which an insurer has a longer period to complete the internal review and notify the claimant of the result.

Table 7.1: Internal review notification period

7.26 In any case, the maximum period including any longer periods above, must be no more than 28 days after the claimant’s request for the insurer to complete and give notice of the result of the internal review.

7.27 If the internal review decision results in the claimant being entitled to payment of benefits, the insurer must make that payment as soon as possible but in any event within 14 days after the internal review decision.

7.28 In notifying the claimant of the result of the internal review, the insurer must provide the claimant with:

(a) the internal reviewer’s certificate including brief reasons for the decision and supporting documents

(b) details of how and when the insurer will give effect to the internal reviewer’s decision

(c) details of the result of the internal reviewer’s decision on the claimant’s entitlement to statutory benefits

(d) the claimant’s right to seek independent legal advice

(e) information on how a claimant may apply to the Personal Injury Commission to dispute the insurer’s decision, including the Commission’s contact details

(f) information on how a claimant may make a complaint with the Independent Review Office (IRO), including the IRO’s contact details.

Legal costs for internal reviews

7.29 The Regulation in Part 6, Division 2, clause 23 provides that no costs are payable for legal services to a claimant or to an insurer in connection with an application for an internal review by the insurer.

Disputes

Legal incapacity and appointed representatives

7.30 Under Division 7.7, section 7.47(2) of the Act, an appointed representative is a person appointed to represent the claimant under legal incapacity, and may be a relative, friend or other suitable person who is willing and able to be appointed to represent the claimant.

7.31 If the claimant ceases to be a person under legal incapacity during the course of proceedings – for example, where a person turns 18 years of age – the appointed representative’s appointment will cease.

7.32 Any person may be appointed as a representative of a claimant except:

(a) a person under legal incapacity

(b) a person who has an interest in the proceedings that may be adverse to the interests of the person under legal incapacity.

Merit review

7.33 Under Division 7.4, section 7.12(4) of the Act, an insurer is required to provide to the claimant and the merit reviewer a statement of reasons (together with any supporting documentation) for a reviewable decision that is the subject of a merit review application, if requested to do so by a merit reviewer.

7.34 Under section 7.12(9) of the Act, an application for merit review must be made within 28 days of the claimant receiving the insurer’s decision, meaning:

(a) where an internal review is required before a merit review, the merit review application must be made:

• within 28 days of the claimant receiving the insurer’s internal review decision
• within 28 days of the claimant receiving the insurer’s decision to decline to conduct the internal review
• within 28 days after the date the insurer was required to complete the internal review in circumstances where the insurer has failed to complete the internal review and notify the claimant of the result within the period required under section 7.9(4)-(5) of the Act

(b) where an internal review is not required before a merit review as prescribed by the Regulation, the merit review application must be made within 28 days of the claimant receiving the insurer’s reviewable decision.

7.35 These time limits do not apply if a merit reviewer determines that it would best promote the objects of the Act to dispense with the time limit.

Miscellaneous claims assessment

7.36 Under section 7.41(2)(a) of the Act, a miscellaneous claims assessment matter may be referred for assessment without an internal review of the decision by the insurer if the dispute is about which insurer is the insurer of the at-fault motor vehicle for the purposes of section 3.3 (‘Determination of relevant insurer’), as listed in Schedule 2, clause 3(c) of the Act.

Damages settlement

7.37 Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:

(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act

(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement

(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner

(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

Introduction

8.1 This Part of the Guidelines provides for the appointment of health practitioners for the purposes of authorisation to give evidence under Division 7.7, section 7.52 of the Act.

8.2 This Part of the Guidelines applies to the appointment (including the reappointment) of health practitioners authorised to give evidence under section 7.52 on and from the date that these guidelines commence.  A health practitioner holding current appointments under section 7.52 on the date these guidelines commence is appointed for the purposes of section 7.52 for the period of time being the remaining duration of the term of  the health practitioner’s appointment or until that appointment is terminated, if terminated at an earlier date.

8.3 A health practitioner, (not being the injured person’s treating health practitioner), is authorised to give evidence in proceedings for the purposes of section 7.52 by:

(a) an agreement between the parties for the health practitioner to conduct a joint medical assessment, or

(b) appointment by the Authority to its list of health practitioners authorised to give evidence, or

(c) appointment by the Authority for a specific purpose and duration on application by a claimant or insurer.

8.4 Health practitioners authorised to give evidence under section 7.52 of the Act and these guidelines, must:

(a) comply with all relevant legal requirements for practice, relevant guidelines, policies and codes of conduct

(b) comply with the relevant law including the Motor Accident Injuries Act 2017 (NSW), the Motor Accident Injuries Regulation 2017 (NSW), these Guidelines, Procedural Direction PIC4 – Expert Witness Evidence and any subsequent procedural directions issued by the President of the Personal Injury Commission relating to expert witness evidence. They should promptly notify the Authority of any compliance breaches.

(c) comply with the standards and conduct for medico-legal consultation, examination and reports set out in the NSW Medical Council Guideline – Medico-Legal Consultations and Examinations

(d) act without bias and in a way that does not give rise to an apprehension of bias in the performance of their responsibilities

(e) act in an ethical, professional and considerate manner when examining injured people and practise procedural fairness when conducting medical assessments and writing reports. This includes respectful communication with injured people and considering their individual needs, providing impartial assessments and ensuring that injured people are given the opportunity to explain any inconsistencies observed during an examination or in supporting material.

(f)  comply with all privacy obligations including under the Health Records and Information Privacy Act 2002 (NSW)and the Privacy Act 1988 (Cth)

(g)  have successfully completed the relevant Authority’s training requirements in permanent impairment evaluation, before undertaking and providing opinion on whole person impairment (WPI) assessments.

8.5 Health practitioners must not during the term of their appointment:

(a) provide treatment advice and/or services to an injured person about whom they are providing evidence as a health practitioner

(b) accept a referral or examine an injured person if the health practitioner has a conflict of interest

(c) ask for or accept any inducement, gift, or hospitality from individuals or companies, or enter arrangements that could be perceived to provide inducements, that may affect, or be seen to affect, the health practitioner’s  ability to undertake the role of a health practitioner authorised to give evidence in an impartial and unbiased manner

(d) engage in activities or publicly express opinions that might be perceived to compromise the health practitioner’s ability to undertake the role of a health practitioner authorised to give evidence in an impartial and unbiased manner

(e) undertake medical assessments and give evidence outside of their area(s) of expertise.

8.6 To be authorised to give evidence in proceedings, a health practitioner must be authorised under section 7.52 and these guidelines at the time the evidence is given. For evidence given by written report, the health practitioner must be authorised at the time the health practitioner examines the claimant and writes the report. If evidence of the health practitioner is admitted into evidence, the health practitioner continues to be authorised to give further evidence on cross-examination and re-examination of that evidence in proceedings.

Joint medical assessments

8.7 Both parties shall use their best endeavours to agree to a joint medical  or other health-related assessment, taking into account the individual circumstances and preferences of the injured person, to minimise the number of medical assessments that they are required to attend. Either party may initiate a request for a joint medical or other health-related assessment.

8.8 In a claim, where a legally-represented claimant and an insurer agree to a health practitioner conducting a joint medical assessment, that health practitioner is authorised under section 7.52(1)(b) of the Act for the purposes of the claimant in the claim concerned.

8.9 The parties must instruct the health practitioner in writing to conduct the joint medical assessment, and to send the report and any supplementary reports to both parties on completion.

8.10 If a party identifies an error in the report, it may request the health practitioner to re-issue the report with the correct information. The party must send the request and supporting evidence to the health practitioner in writing within seven days of receiving the initial report and provide a copy of the request and supporting evidence to the other party.

8.11 A  supplementary report must be agreed to by both parties to be considered a joint report . A report issued by the health practitioner to correct an error is not considered supplementary.

8.12 The insurer must meet the cost of the joint medical assessment, including the initial report and any supplementary reports agreed by the parties.

Appointment by the Authority to its list of health practitioners authorised to give evidence

8.13 A health practitioner seeking appointment (including re-appointment) to the Authority’s list of health practitioners authorised to give evidence must apply to the Authority by completing and submitting the application form available on the Authority’s website.

8.14 The Authority will determine the application for appointment against the eligibility requirements and notify the applicant in writing of its decision.

8.15 The Authority will publish on its website the details of health practitioners appointed to its list, including their names,  contact details, practice locations, and other information relevant to their role as a  health practitioner authorised to give evidence.

Eligibility requirements

8.16 The Authority may appoint a health practitioner to its list of health practitioners authorised to give evidence if it is satisfied that the health practitioner:

(a) is a health  practitioner registered with the Australian Health Practitioner Regulation Agency (AHPRA), with no conditions, undertakings, reprimands, limitations or restrictions on registration as a result of a disciplinary process, and is not subject to supervisory requirements

(b) has at least five years of full-time equivalent relevant clinical experience, and/or two years of full-time equivalent relevant clinical experience in addition to an advanced qualification recognised by the relevant professional body that sets training standards for its members, where a professional body has requested the Authority consider the qualification as relevant

(c) has  knowledge of the treatment and management of injuries in personal injury schemes and return to activity

(d) is in current clinical practice or a teaching position in the relevant specialty, or has recently been in clinical practice, or undertakes professional activities such that they are aware of current clinical practice

(e) has high-level communication skills, including interpersonal skills and report writing skills, such that they would be able to comply with the requirements for consultations, examinations and reports outlined in the NSW Medical Council titled ‘Guidelines for medico-legal consultations and examinations’

8.17 The Authority will consider all relevant information available to assess whether a health practitioner meets the eligibility requirements and may request additional information from the applicant or relevant third parties. This may include:

(a) information related to complaints, compliance, or breaches of legislation, guidelines, or fee schedules within the past 10 years

(b) conditions on registration or current disciplinary proceedings that may affect the practitioner’s registration, ability to undertake the role, or integrity of the NSW Motor Accidents CTP Scheme

(c) any pending criminal charges or any criminal convictions and/or demonstrated behaviour that may affect the practitioner’s ability to undertake the role with impartiality and fairness or may affect the integrity of the CTP Scheme.

8.18 Health practitioners are appointed to the Authority’s list for up to three years, with an option for the Authority to extend the appointment, at its  discretion. Health practitioners must re-apply to continue to be authorised to give evidence after the expiration of their term, unless the  Authority has notified the health practitioner that the health practitioner’s term has been extended and the period of that extension.

8.19 Health practitioners appointed to the Authority’s list must continue to meet clauses 8.4 and 8.5, the eligibility requirements and comply with the terms of appointment to remain authorised during their period of appointment.

Declining an application

8.20 The Authority may decline a health practitioner’s application. If the Authority declines to appoint a health practitioner, the Authority will notify the practitioner in writing, including:

(a)  brief reasons for that decision

(b)  a time period, if any, before the health practitioner may re-apply for appointment and the reasons for that nominated period.

8.21 If the health practitioner disagrees with the Authority’s decision, the health practitioner  may ask the Authority to review its decision by writing to the Authority at [email protected] within 21 days of receipt of the decision. The health practitioner is to provide any relevant information as to why their application should be accepted. The Authority will undertake the internal review and notify the health practitioner of the outcome within 21 days of receiving the request for review or within 21 days after receiving the last document or information the Authority may request from the health practitioner, if the Authority requested additional information.

8.22 A health practitioner seeking to re-apply must complete a new application form.

Terms of appointment

8.23 In addition to the requirements set out in clauses 8.4 and 8.5, health practitioners appointed to the Authority’s list must:

(a) complete at least two hours of continuing professional development (CPD) related to medico-legal practice during the three-year period of authorisation, including but not limited to training about conducting medico-legal assessments, dispute resolution, communicating with injured people and/or writing medico-legal reports. This may be as part of the general minimum requirements set out by AHPRA for each relevant Board and may be provided by any relevant CPD provider

(b) agree to the Authority publishing on its website the health practitioner’s name, contact details, practice location(s), and other information relevant to the terms and extent of their appointment

(c) notify the Authority at [email protected] within 14 days of any change to name or details

(d) notify the Authority within seven days of changes to any circumstances that may compromise their ability to meet the eligibility requirements and comply with the terms of appointment

(e) have access to the necessary resources and infrastructure to do all administrative activities necessary for the role

(f)  establish and maintain appropriate and secure record management systems to manage work and maintain records and data lawfully and efficiently

(g)  participate in the Authority’s performance framework for health practitioners authorised to give evidence, including complying with any mandatory training  and data reporting  requirements

(h) co-operate with the Authority’s complaints-handling framework, including responding to complaints with full and accurate details and, when indicated by the Authority, taking remedial action.

8.24 A health practitioner appointed to the Authority’s list must accept all referrals whether made on behalf of an injured person or an insurer, and must only decline a request if:

(a) they are not adequately qualified or experienced

(b) the request relates to a medical matter for which the health practitioner is not authorised to give evidence

(c) the health practitioner has a conflict of interest (personal, professional, and/or financial)

(d) they are a decision-maker at the Personal Injury Commission for the same claim

(e) for any other reasonable reason the health practitioner is unable to complete the assessment and report within the terms specified by the requesting party.

Restrictions

8.25 The Authority may impose restrictions on a health practitioner authorised to give evidence.

8.26 A restriction may include limiting the authorisation to give evidence in:

(a) specified medical matters, or

(b) medical matters in specified claims, or

(c) medical matters related to specified claimants or kinds of claimants.

8.27 The Authority may also restrict a health practitioner’s appointment to a defined period or for the duration of a specific claim.

8.28 The Authority may impose a restriction on a health practitioner’s appointment at any time during the period of authorisation, after first notifying the health practitioner.

Cessation of appointment

8.29 The Authority may revoke a health practitioner’s appointment at any time. The Authority will notify the health practitioner in writing of its revocation and the reasons for the revocation.

8.30 If the health practitioner disagrees with the Authority’s decision, the health practitioner may request a review of the decision within 14 days of receipt of the decision and provide any relevant information as to why the appointment should not be revoked. The Authority will undertake the review and notify the health practitioner of the outcome within 21 days after receipt or if the authority requests further information, within 21 days after receiving the last document or information.

8.31 A health practitioner may cease their appointment at any time during the term of the appointment by notifying the Authority in writing.

8.32 A health practitioner whose appointment has been revoked, or a health practitioner who ceases their appointment, must as soon as possible cancel any appointments for medical assessments due to take place after the date of revocation or cessation, and notify all affected parties of those cancellations. They must issue any reports related to the medical assessments conducted prior to their revocation or cessation as soon as possible. They must not accept any new bookings for medical assessments as a health practitioner authorised to give evidence under section 7.52 and these guidelines.

8.33 When a health practitioner’s appointment is revoked, or a health practitioner ceases their appointment,  the evidence given by the health practitioner in the period when the health practitioner was authorised, including at the examination  of the claimant and production of a report, is  admissible for the purposes of section 7.52 of the Act. The health practitioner continues to be authorised for any cross-examination and re-examination during the proceedings.

Appointment by the Authority on application by the parties

8.34 If a claimant or insurer proposes to obtain evidence from a health practitioner not appointed to the Authority’s list of health practitioners authorised to give evidence, a claimant or an insurer may apply by writing to the Authority at [email protected] to seek the authorisation of that health practitioner.  The health practitioner must be authorised prior to examining the claimant and writing a report.

8.35 A health practitioner appointed under this section must comply with the requirements set out in clauses 8.4 and 8.5 in these guidelines.

8.36 The application to the Authority must include:

(a) reasons why the applicant party cannot obtain evidence from a health practitioner on the Authority’s list

(b) reasons why a joint medical assessment cannot be arranged

(c) the name, address and qualifications and/or experience of the health practitioner the applicant party requests the Authority to appoint

(d) details of the specific claim or claims for which the evidence is being sought, including claim number, claimant name, and other identifying information.

8.37 For the purposes of section 7.52, the Authority may appoint the nominated health practitioner if the Authority is satisfied that:

(a)  the applicant party cannot obtain the required evidence from a health practitioner on the Authority’s list, and

(b) the health practitioner has suitable qualifications and skills to give the evidence.

8.38 The Authority will consider all relevant information to assess whether a health practitioner meets the eligibility requirements and may request additional information from the applicant or third parties. This may include:

(a) information related to complaints, compliance, or breaches of legislation, guidelines, or fee schedules within the past 10 years

(b)  conditions on registration or current disciplinary proceedings that may affect the practitioner’s registration, ability to undertake the role, or integrity of the CTP Scheme

(c)  any pending criminal charges or any criminal convictions and/or demonstrated behaviour that may affect the practitioner’s ability to undertake the role with impartiality and fairness or may affect the integrity of the CTP Scheme.

8.39 The Authority will determine the application for appointment and notify the applicant in writing of its decision. Where the Authority accepts the appointment, the Authority will also notify the health practitioner that the health practitioner is authorised to give evidence and outline the terms of the appointment including any restrictions.

8.40 The claimant or insurer relying on evidence from  a health practitioner appointed by the Authority on application by a party must provide to the other party a copy of the Authority’s notification of authorisation at the time the report is served or relied upon, whichever is the earlier.

8.41 Unless otherwise specified by the Authority, a health practitioner appointed by the Authority on application by a party is authorised only for the purposes and duration of the relevant claim or claims. The Authority may impose further restrictions on the appointment at any time during the period of authorisation.

8.42 A health practitioner authorised to give evidence  by the Authority on application by a party must include in the health practitioner’s report(s) a statement that they are authorised by the Authority and any restrictions on the appointment that apply.

8.43  The Authority may revoke a health practitioner’s authorisation by the Authority on application by a party at any time. The Authority will notify the applicant and the health practitioner in writing and advise the reasons for the revocation. The guidelines for ‘Cessation of appointment’ in this Part will apply.