Guidance to Joint Medical or Other Health-Related Assessments in the CTP Scheme

Publication note

This Guidance is published by the State Insurance Regulatory Authority (SIRA). SIRA was established on 1 September 2015 under the State Insurance and Care Governance Act 2015 (SICG Act) as the regulator of compulsory insurance schemes in New South Wales (NSW).

Purpose

The purpose of this guidance is to set out an approach to support insurers and the legal representatives of claimants to reach agreement to joint medical or other health-related assessments during a compulsory third party (CTP) damages claim.

This guidance has been developed through consultation with key stakeholders including insurers, legal representatives and health practitioners working in the scheme.

Attending multiple medical or other health-related assessments can make the claims process adversarial, stressful and inconvenient for an injured person, particularly if they are having to take time off work and travel long distances to attend assessments. This may adversely affect their recovery.

Reducing the number of assessments an injured person is required to attend aims to improve their experience. A joint medical or other health-related assessment is one assessment conducted by a health practitioner who has been jointly instructed by both parties to provide one report about the extent of a person’s injuries to assist in making decisions about a damages claim. An independent medical or other health-related assessment is an assessment conducted by a health practitioner who has been instructed separately by one party. Independent assessments may result in an injured person having to see multiple health practitioners if each party requests the injured person attend an assessment.

Part 8 of the Motor Accident Guidelines (the Guidelines) sets out requirements related to health practitioners authorised to give evidence. Clause 8.7 of the Guidelines notes the following:

Joint medical or other health-related assessments may:

• minimise stress and trauma for the injured person, and support their experience through the claims process
• be less disruptive to the injured person’s recovery, treatment and return to work and other pre-injury activities
• decrease delays and disputation within a claim

SIRA expects the parties to comply with the requirements in the Guidelines. The information contained in this guidance is to assist the parties to meet the expectations outlined in the Guidelines.

Legislative framework

The Motor Accident Injuries Act 2017 (the Act) establishes a scheme of CTP Insurance (the Scheme) and provides benefits and support to people injured as a result of motor accidents in NSW on or after 1 December 2017.

Under the Act, claimants and insurers are required to:

• endeavour to resolve a claim as justly and expeditiously as possible (section 6.4 of the Act)
• act towards the other in good faith in connection to a claim (section 6.3 of the Act).

These duties support the objects of the Act, particularly to encourage the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes (section 1.3(2)(g) of the Act).

Application of guidance material

This guidance should:

• be read by all parties seeking to arrange a medical or other health-related assessment of an injured person for the purposes of a damages claim
• be applied as a best practice model by parties to agree to and arrange joint medical or other health-related assessments
• be read alongside the relevant legislative framework, including the Act, the Motor Accident Injuries Regulation 2017and the Guidelines.

This guidance applies to joint medical or other health-related assessments made for the purposes of a damages claim. SIRA expects the parties to progress claims and/or disputes related to treatment and care or earning capacity expeditiously.

This guidance does not apply to reports prepared by treating health practitioners.

Considerations before seeking a medical or other health-related assessment

Medical or other health-related assessments may assist in an injured person’s recovery, in making decisions regarding a damages claim, establishing causation of an injury, resolving disputes in a claim, and progressing a claim to resolution. A claimant’s legal representative or an insurer may seek an independent medical assessment from a non-treating health practitioner to obtain an opinion and/or further information regarding an injured person’s injury, treatment and care, work capacity and permanent impairment.

A report is admissible in court and Personal Injury Commission proceedings when it is appointed jointly by both parties, or in the following circumstances:

• appointed by SIRA to its list of health practitioners authorised to give evidence, or
• appointed by SIRA for a specific purpose and duration on application by a claimant or insurer (section 7.52 of the Act; Part 8 of the Guidelines). In this scenario, if a joint assessment cannot be arranged and a suitable health practitioner authorised to give evidence is unavailable, an independent medical examiner with availability chosen by either party may be proposed to SIRA for authorisation, following the process outlined in Part 8 of the Guidelines.

To reduce the impact of medical or other health-related assessments on injured people, consideration should be given as to whether evidence can be obtained without an assessment. If a medical or other health-related assessment is sought for the purposes of permanent impairment, an assessment should not be arranged until the injuries appear to have stabilised.

Before seeking a medical or other health-related assessment, insurers and legal representatives should consider the following:

Can the evidence be obtained from the treating health practitioner?

Parties should not preference requesting a medical or other health-related assessment before inquiring with relevant treating medical, rehabilitation and health service practitioners to try and resolve any issue(s). A request should first be made to the treating practitioner(s) and copies of all reasonably available treating material should be obtained before seeking a medical or other health-related assessment. Parties should consider whether the treating material provides sufficient evidence on its own, whether clarification can be sought from the treating practitioner(s), or whether the material can be reviewed by a medico-legal expert for comment, before arranging an assessment. Insurers must also comply with their obligations under Part 4 of the Guidelines in respect to arranging medical examinations.

What is the nature of the injury?

If it is clear from the injury received the person will have a permanent impairment greater than 10%, insurers should consider whether to concede whole person impairment and fast-track a claim for damages, without subjecting injured people to medical assessments.

Individual circumstances and preferences of the injured person

If a medical or other health-related assessment is required, the preferences and circumstances of the injured person should be considered. Injured people should be given the opportunity to actively participate in decision-making about the medical or other health-related assessment process. Insurers and legal representatives may provide claimants with this guidance document and SIRA’s flowchart outlining the joint medical or other health-related assessment process to assist the injured person.

Insurers should advise claimants of the option and intention of joint medical assessments where the claimant is legally represented and has made a claim for damages.

Legal representatives acting for injured people should discuss the following matters with the injured person prior to proposing or considering a request for a joint assessment:

• the preferences of the injured person, such as the gender of the health practitioner, a particular location, and other preferences
• the specific needs of the injured person, such as if they have a disability, English is not their first language, cultural, religious and other needs
• the role of a health practitioner in conducting a medical or other health-related assessment and what the injured person can expect during their assessment
• SIRA’s expectation that the parties shall use their best endeavours to agree to a joint medical assessment
• the advantages and disadvantages of independent and joint assessments, and their respective different processes
• the potential total number of assessments that the injured person may be asked to attend if there is no agreement to a joint assessment
• the costs of medical or other health-related assessments, including potential up-front costs for the claimant
• that an insurer is required to meet the cost of joint medical or other health-related assessments and the reasonable and necessary costs to attend the assessment.

Proposing a joint medical or other health-related assessment

A party wishing to initiate a medical or other health-related assessment should write to the other party to propose a joint assessment. Consideration should be given to the purpose(s) of the assessment(s), the type of assessment(s) required and the relevant specialty that should be consulted for the issue(s) which requires assessment. It may be useful to provide a reason for the request (for example, an assessment of whole person impairment is required, and the claimant’s treating practitioner(s) have been unable to provide that assessment).

The initiating party should nominate three health practitioners, taking care to ensure they are all appropriately qualified and experienced in the relevant field, and that they have successfully completed the relevant permanent impairment evaluation training, where the assessment is required for the purposes of a permanent impairment assessment. A party does not have to nominate three health practitioners in circumstances where there are fewer than that available in the specialty required.

If this is the case, the party should explain in writing that fewer than three have been selected due to the shortage of suitable health practitioners. As part of the selection process consideration should be given to the location in which the nominated health practitioners conduct assessments, to minimise disruption to the injured person and the travel required for the injured person, and the availability of the nominated health practitioners to minimise delays.

Parties are encouraged in the first instance to nominate health practitioners from SIRA’s list of health practitioners authorised to give evidence. It is not mandatory for parties to use SIRA’s list of health practitioners in the case of a joint assessment, but parties are encouraged to use the list wherever possible.

Responding to a request for a joint medical assessment

To minimise delay, the receiving party should respond to the request in writing as soon as practicable, and in any event within ten business days. The receiving party should:

• select at least one of the nominated health practitioners to maximise the possibility of a suitable practitioner being agreed to and available, or
• propose one or more alternative health practitioner.

SIRA expects that any party who receives a request for a joint medical or other health-related assessment will respond to that request, regardless of whether they agree or disagree, and will do so in a timely manner

Parties who receive a request for a joint assessment and wish to propose an alternate health practitioner(s) are also encouraged to select the nominated health practitioner(s) from SIRA’s list wherever possible.

Parties are encouraged to work collaboratively and to keep the best interests of the injured person the primary consideration, with the objective of minimising the number of assessments an injured person is required to attend.

Where the receiving party has nominated an alternative health practitioner, the initiating party should respond in writing within ten business days.

If agreement for joint assessments cannot be reached

If the parties follow the process in this guidance and still cannot reach agreement to a joint assessment, the parties are encouraged to consider seeking assistance from SIRA.

The parties may agree to contact SIRA to request assistance in selecting a suitable health practitioner to conduct a joint medical or other health-related assessment. Before contacting SIRA, the parties should have reached prior agreement to accept the health practitioner selected by SIRA. The request should be made to SIRA by email and should advise the specialty of health practitioner required. The parties should not submit the names of those practitioners already proposed by either party.

SIRA will randomly select a suitably qualified health practitioner from its list of health practitioners authorised to give evidence who has available appointment times within a reasonable period of time (up to two months maximum). Any appropriately qualified practitioner on this list may be selected, including those previously nominated by either party. SIRA will respond to the request within five business days.

If either party disputes the outcome of the report produced during the joint assessment, asking an injured person to undergo another medical assessment should be considered a last resort. Insurers should note their obligations under Part 4 of the Guidelines when considering the outcome of a joint assessment.

Arranging a joint medical or other health-related assessment

Where the parties have reached agreement to a joint medical assessment and the health practitioner to undertake the assessment, one party (as agreed between the parties) should book the assessment, considering the following factors:

• the availability of the injured person
• the travel arrangements required for the injured person to attend the medical assessment and their travel capability
• any particular needs the injured person may have
• minimising disruption to the injured person, including to their recovery, treatment and any employment, family and education commitments.

The booking party should advise the other party of the assessment details within two business days of making the appointment, and keep the other party advised of any changes relating to the appointment.

The parties should ensure any appropriate arrangements are made or requested in respect to the injured person’s travel expenses for the assessment and any interpreter requirements.

Neither party should engage in any separate communication with the health practitioner conducting the joint assessment, other than for the purposes of booking the assessment and confirming any necessary administrative details.

Proceeding with a joint medical or other health-related assessment

Once a joint medical or other health-related assessment has been booked, the parties should work collaboratively to agree to a joint letter of instruction. The health practitioner should be instructed in writing of the following:

1. that the health practitioner is to perform a joint assessment
2. the questions the health practitioner is to address (including identification of any additional separate questions posed by each party)
3. that the health practitioner is to send the report, any report(s) issued to correct an error, and any jointly requested supplementary reports to both parties concurrently on completion
4. any additional material to be provided to the health practitioner

The joint letter of instruction should contain sufficient details of the purpose of the assessment and tailored questions which the parties require the health practitioner to answer. Parties should ensure the questions asked of the health practitioner are specific to the purpose(s) of the assessment.

The initiating party (or as otherwise agreed between the parties) should prepare the draft letter of instruction as soon as reasonably practicable after the assessment has been booked. The draft letter of instruction should be sent to the other party by no later than the earlier of:

• fifteen business days before any cut-off time the health practitioner may have for the provision of the letter of instruction and supporting material, or
• fifteen business days before the assessment date.

In addition to the letter of instruction, the party should also provide an index of any material it intends to attach to the letter of instruction (including copies of any documents not previously provided).

The other party should respond with any requested amendments to the letter of instruction and advise any additional material it intends to attach to the letter of instruction (providing copies of any documents not previously provided) as soon as possible and allowing reasonable time for the drafting party to review any amendments in advance of the assessment.

Separate questions

SIRA expects that the parties will use their best endeavours to agree to a list of questions within the letter of instruction. However, if agreement cannot be reached on all the questions, the parties may each include an additional three questions within the letter of instruction. Each party should be made aware of the additional questions of the other party during the process of preparing the letter of instruction and the parties should ensure the health practitioner is not asked questions which are framed in a leading manner or would require contradictory responses. The additional questions posed by each party should be clearly identified in separate sections within the letter of instruction.

Relevant material

Each party should ensure the material it includes for provision to the health practitioner is adequate and relevant for the purposes of the assessment which may include the following:

• the claim form(s)
• Certificate(s) of fitness
• ambulance report
• hospital notes and reports
• operation report(s)
• treating practitioner notes and reports (GP, specialists, allied health, rehabilitation provider)
• radiological investigations and reports
• any other independent medical reports (if applicable)
• relevant photographs of injuries (for example, scarring)
• school reports (if applicable)
• surveillance material or other investigation reports
• vocational assessments (if applicable)
• copies of the relevant expert codes of conduct
• any further material the parties consider relevant and appropriate for the purpose(s) of the assessment.

The above list provides suggestions of the types of documents that parties may wish to consider providing for an assessment. Not every document listed above will be relevant for every type of assessment.

Parties should provide the material to the health practitioner in such a manner that individual documents may be easily identified and referred to, for example, by including an index and paginating or bookmarking the attachments enclosed.

Care should also be taken to ensure no duplicated material or unnecessary excerpts (for example, blank pages) are sent to the health practitioner.

Template letter of instruction

SIRA has provided a template letter of instruction that the parties may use. This is provided as an example only and may be modified (including the deletion and/or addition of any sections or questions) by agreement between the parties. If the parties are unable to agree on including the details of both parties on the letterhead, the template letterhead should be left blank.

The assessment

Part 8 of the Guidelines sets out the requirements for health practitioners conducting medical or other health-related assessments, including requirements to practise procedural fairness and treat injured people with respect.

The insurer is required to meet the costs of any joint medical or other health-related assessment (including any supplementary reports jointly requested and agreed by the parties).

After the assessment

The health practitioner should ensure that, upon completion of the joint medical or other health-related assessment and finalisation of the report, identical copies of the report are sent to both parties.

Clarification of an error

If either party has an issue with the contents of the joint report, clarification should first be sought from the health practitioner utilising the process under Part 8 of the Guidelines for correction of an identified error.

A request by a party to the health practitioner to rectify an error in the joint assessment report is not considered a request for a supplementary report. If a party identifies an error in the joint assessment report it may request that the health practitioner re-issue the report with the correct information. Under Part 8 of the Guidelines, the request and supporting evidence must be sent to the health practitioner in writing within seven days of receiving the initial report. A copy of the request should be sent to the other party.

Examples of ‘errors’ in a report may include, but are not limited to:

• incorrect description of a party;
• a typographical error;
• an error arising from an accidental slip or omission (for example, a question that was missed);
• an obvious inconsistency between the findings of the report and the reasons explaining the report.

Supplementary reports

In rare circumstances a party may wish to request a supplementary report upon receipt of the joint report, the party should:

• contact the other party as soon as reasonably practicable upon receipt of the initial report
• send the draft request for a supplementary report to the other party for review.

The other party should respond to the request for a supplementary report within ten business days. If they do not agree to the request for a supplementary report, they should indicate the reasons why. Where there is agreement to a supplementary report, the insurer is required to meet the costs.

Under Part 8 of the Guidelines, a supplementary report must be agreed to by both parties to be considered a joint report. If the parties are unable to reach agreement, and a party still wants to seek a supplementary report, it may do so. However, it should advise the health practitioner in writing that it is no longer a joint assessment and pay for the supplementary report.

If the parties do not agree to the outcome of the joint assessment report, they are strongly encouraged to consider whether issues can be addressed through a supplementary report before seeking an alternate assessment.

Asking an injured person to undergo another medical or other health-related assessment should be considered a last resort.

Checklist - Joint Medical or Other Health-Related Assessment Process