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Part 7 of the Motor Accident Guidelines: Dispute Resolution

Preliminary

Explanatory note

7.1 ‘Part 7 of the Motor Accident Guidelines: Dispute resolution’ is made under those sections of the Motor Accident Injuries Act 2017 (NSW) (the Act) relating to dispute resolution in the NSW motor accident injuries (MAI) scheme, including internal reviews by insurers and the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (the Authority).

7.2 DRS has been established by the Authority under Division 7.2, section 7.2 of the Act, as a dispute resolution service that is independent of insurers and claimants, to resolve disputes as they arise during the course of a claim.

7.3 The power to make this Part of the Motor Accident Guidelines comes from the Act, including Part 7, Division 7.3 (Internal review), Division 7.4 (Merit review), Division 7.5 (Medical assessment) and Division 7.6 (Claims assessment).

Definitions

Definitions

7.4 The definitions of terms in this clause apply to this Part of the Motor Accident Guidelines. For terms that are not included here, the definitions provided by the Act apply. The terms used in ‘Part 7 of the Motor Accident Guidelines: Dispute resolution’ have the following meanings:

Act – the Motor Accident Injuries Act 2017 (NSW).

Advisory service – An advisory service under section 7.49 of the Act to assist claimants in connection with their claims and with the dispute resolution procedures under Part 7 of the Act.

Applicant – The party that refers a claim or dispute in connection with a claim.

Application – The way a party refers a merit review matter, medical assessment and claims assessment matter to DRS.

Claims for insurers – ‘Part 4 of the Motor Accident Guidelines: Claims’, which is made under section 6.1 of the Act, and which makes provision with respect to the manner in which insurers and those acting on their behalf are to deal with claims.

Decision-maker – A DRS merit reviewer, DRS claims assessor, DRS principal claims assessor, DRS proper officer or DRS medical assessor.

DRS – The Dispute Resolution Service of the Authority .

EDM system – Electronic Dispute Management system.

Health Practitioner – Has the same meaning as in the Health Practitioner Regulation National Law (NSW).

Internal reviewer – An insurer’s internal reviewer who may conduct an internal review under Division 7.3 of the Act.

MAI scheme – The NSW motor accident injuries scheme created under the Act.

Matters – A merit review matter, medical assessment matter, or miscellaneous claims assessment matter as declared by Schedule 2 of the Act.

Officer of DRS – A staff member of DRS.

Parties – A reference in this Part of the Motor Accident Guidelines to a party includes a reference to any representative of that party, unless otherwise specified.

PCA – The principal claims assessor of DRS appointed under Schedule 3 of the Act.

Regulation – The Motor Accident Injuries Regulation 2017.

Representative – A person representing an insurer or claimant.

Reply – The response to an application.

Respondent – A party who replies to an application.

Obligations and duties

Obligations and duties of the insurer

7.5 An insurer must:

(a) act in accordance with the objects of the Act and the objects of DRS

(b) comply with its duty to act in good faith under section 6.3 of the Act

(c) comply with its duty to endeavour to resolve a claim as justly and expeditiously as possible under section 6.4 of the Act

(d) act honestly and fairly while participating in any dispute resolution processes, including complying with any requests or directions made by decision-makers

(e) not mislead the parties, representatives, DRS or any decision-maker

(f) attempt to identify and narrow any issues in dispute before any application is lodged with DRS and continue to do so while any application is being considered by DRS

(g) comply with the requirements of ‘Part 7 of the Motor Accident Guidelines: Dispute resolution’.

Obligations and duties of the claimant

7.6 A claimant must:

(a) act in accordance with the objects of the Act and the objects of DRS

(b) comply with their duty to act in good faith under section 6.3 of the Act

(c) comply with their duty to endeavour to resolve a claim as justly and expeditiously as possible under section 6.4 of the Act

(d) comply with their duty to take all reasonable steps to minimise their loss under section 6.5 of the Act

(e) comply with any requests or directions made by decision-makers

(f) act honestly and not mislead the parties, representatives, DRS or any decision-maker

(g) attempt to identify and narrow any issues in dispute before any application is lodged with DRS and continue to do so while any application is being considered by DRS

(h) comply with the requirements of ‘Part 7 of the Motor Accident Guidelines: Dispute resolution’.

Obligations of a representative of a party

7.7 A representative of a claimant or insurer must:

(a) act honestly and not mislead the parties, representatives, DRS or any decision-maker

(b) assist the party they are representing to act in accordance with the objects of the Act and the objects of DRS

(c) assist the party they are representing to meet their obligations and duties under these Guidelines

(d) ensure that they do not, by their conduct, cause the party they represent to fail to meet their obligations and duties under these Guidelines.

Obligations of DRS

7.8 Decision-makers of DRS must:

(a) assist the parties to resolve the issues in dispute referred to them

(b) assist the parties to further the objects of the Act and the objects of DRS

(c) assist the parties to meet their obligations and duties under these Guidelines

(d) act honestly and not mislead the parties, representatives or any decision-maker

(e) interpret and apply the provisions of this Part of the Motor Accident Guidelines in a way that best supports the objects of the Act, and the objects of DRS.

7.9 Officers of DRS must:

(a) assist the parties and decision-makers to resolve any issues in dispute in the claim

(b) assist the parties and decision-makers to further the objects of the Act and the objects of DRS

(c) assist the parties, their representatives and decision-makers to meet their obligations and duties under these Guidelines.

7.10 DRS may provide reports to the Authority on the failure of a claimant or insurer to comply with any duty, under section 6.7 of the Act.

Expert witness code of conduct

7.11 Any party who retains an expert to provide evidence or a report for use at DRS must bring to the expert’s attention relevant statutory regulations and guidelines, including this section.

7.12 Individuals that must comply with this code of conduct include any person engaged as an expert witness to provide a report or to give opinion evidence in:

(a) a dispute about a merit review matter, medical assessment matter, or a miscellaneous claims assessment matter

(b) the assessment of a claim under Division 7.6

(c) the exercise of a function, not included in Schedule 2, by a decision-maker designated by the DRS.

7.13 An expert witness has an overriding duty to assist DRS impartially on matters relevant to the expert witness’s area of expertise.

Expert reports

7.14 An expert witness is not an advocate for a party.

7.15 Every report prepared by an expert witness must include the following:

(a) the name and address of the expert

(b) an acknowledgement that the expert has read this code of conduct and agrees to be bound by it

(c) the expert’s qualifications to prepare the report

(d) the facts and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed)

(e) the expert’s reasons for each opinion expressed

(f) if applicable, that a particular issue falls outside the expert’s field of expertise

(g) any literature or other materials used in support of the opinions

(h) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out

(i) whether any opinion expressed in the report is not a concluded opinion because of insufficient research, data or for any other reason

(j) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).

7.16 If an expert witness changes their opinion on a material matter after providing a report, the expert witness must immediately provide a supplementary report to that effect containing all relevant information as listed above.

Working co-operatively with other expert witnesses

7.17 An expert witness must promptly comply with all directions given by a DRS decision-maker, including to confer with another expert witness or to prepare a joint report with another expert witness on any issue. The expert witness must:

(a) exercise professional judgment on that issue

(b) endeavour to reach agreement with another expert witness on that issue

(c) not act on any instructions or request to withhold or avoid agreement with any other expert witness.

Conclaves, conferences and evidence

7.18 An expert witness must abide by any direction of a DRS decision-maker to:

(a) attend a conclave or conference with any other expert witness

(b) endeavour to reach agreement on any matters in issue

(c) prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement

(d) base any joint report on specified facts or assumptions of fact

(e) give evidence concurrently with other experts.

7.19 An expert witness must exercise his or her independent, professional judgment regarding such a conclave or conference and joint report and must not act on any instruction or request to withhold or avoid agreement.

Insurer internal review

Guideline powers

7.20 This Part of the Motor Accident Guidelines, in relation to internal reviews by insurers, is made under the Act, including under Division 7.3, section 7.9 of the Act.

Internal review matters

Decisions subject to an internal review

7.21 A claimant may request an internal review by the insurer of its decision about a merit review matter, medical assessment matter, or a miscellaneous claims assessment matter.

7.22 Merit review matters, medical assessment matters and miscellaneous claims assessment matters are defined in section 7.1 of the Act to be those matters that are declared by Schedule 2 of the Act.

Decisions not subject to an internal review

7.23 An application to DRS may be made without an internal review, under sections 7.11(2),  7.19(2), and 7.41(2) of the Act, if the insurer has failed to complete an internal review and notify the claimant of the decision on the internal review as and when required to do so, or has declined to conduct a review.

7.24 Part 5, Division 1 of the Regulation prescribes the types of matters that do not require an internal review before an application to DRS is made.

Requesting an internal review

Time for requesting an internal review

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

7.26 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 apply to DRS to dispute a reviewable decision of the insurer because the insurer has declined to conduct an internal review.

Application requirements

7.27 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.

7.28 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.

7.29 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

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

7.31 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.

7.32 The notification from the insurer must advise the claimant whether the insurer accepts that it has power to conduct an internal review of the decision, or alternatively whether the insurer does not accept it has the power to 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.

7.33 If the insurer accepts that it has the power to conduct an internal review of the decision, the insurer must advise the claimant as soon as practicable, and preferably 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.

7.34 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 preferably 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 DRS to dispute a reviewable decision of the insurer because the insurer has declined to conduct an internal review.

7.35 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 of its decision to decline the application in accordance with the notification requirements set out above.

The internal review

The internal reviewer

7.36 The insurer must appoint an internal reviewer who:

(a) has the required skills, experience, knowledge and capability to conduct the internal review in accordance with the objects of the Act, the obligations and duties established in this Part of the Motor Accident Guidelines

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

(c) may have previously conducted an internal review in relation to the same claim.

The internal review process

7.37 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.

7.38 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.

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

7.40 The internal reviewer may consider information that was not provided before the decision being reviewed was made, under section 7.9(6) of the Act. The insurer must provide any such information to the claimant if it has not already been provided to the claimant and the claimant the opportunity to respond to the information.

7.41 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.

7.42 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

7.43 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.

7.44 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.

7.45 The insurer must notify the claimant of the results of the internal review within the period of time specified in Table 7.1 after receiving the request for review, under section 7.9(4) of the Act, unless the circumstances outlined below apply to allow a longer period.

Table 7.1: Internal review notification period

Internal review matter types

Internal review period

Merit review matters:

1. all matters (Schedule 2, clause 1)

14 days

Medical assessment matters about:

2. treatment and care being reasonable and necessary and causally related (Schedule 2, clause 2(b))

3. treatment  and care improving recovery (Schedule 2, clause   2(c))

4. degree of impairment of earning capacity (Schedule 2, clause 2(d))

14 days

Medical assessment matters about:

5. degree of permanent impairment (Schedule 2, clause 2(a))

6. minor injury (Schedule 2,   clause 2(e))

21 days

Miscellaneous claims assessment matters:

7. excluding those matters listed  below
(Schedule 2, clause 3)

14 days

Miscellaneous claims assessment matters about:

8. fault (Schedule 2, clause 3(d))

9. person mostly at fault (Schedule 2, clause 3(e))

10. serious driving offence exclusion (Schedule 2, clause 3(f))

11. contributory negligence (Schedule 2,   clause 3(g))

21 days

7.46 In any application for internal review, the insurer has a longer period, under section 7.9(5) of the Act, to complete and give notice of the results of an internal review where:

(a) the claimant provides, at some point after the application for an internal review was lodged, new information of their own or at the insurer’s request that is relevant to the issues under review, an additional period of up to 14 days after the information is provided is allowed, and

(b) 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 results of the internal review.

7.47 The internal review decision of the insurer should be applied and given effect to as quickly as is practicable, in accordance with the insurer’s responsibilities under this Part of the Motor Accident Guidelines.

7.48 A claimant who has received an internal review decision made by the insurer may refer that decision to DRS.

7.49 In notifying the claimant of the results 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) information on how a claimant may apply to DRS, including DRS contact details.

Legal costs for internal reviews

7.50 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.

Dispute Resolution Service

Lodging applications and replies

7.51 The general process for referring a dispute to DRS for resolution is by lodging an application in accordance with the standard DRS application requirements set out in the ‘Lodging applications and replies’ section of this Part of the Motor Accident Guidelines.

7.52 Additional application requirements for each specific type of dispute referral are also set out in subsequent clauses in this Part of the Motor Accident Guidelines in relation to merit review matters, medical assessment matters, and claims assessment matters.

7.53 For functions conferred on DRS by the Act in relation to any matter other than a merit review matter, medical assessment matter or miscellaneous claims assessment matter, to the extent that those functions require or permit an application to be made by a party, such matters may be referred to DRS by lodging an application in accordance with the standard DRS application requirements. The Executive Director, a Director, or the PCA of DRS will designate the appropriate type of decision-maker or decision-makers to determine the application.

Contacting DRS

7.54 The DRS office is located at 1 Oxford Street, Darlinghurst, Sydney, and is open to the public for lodgement of documents and general enquiries from 8:30am to 5:00pm except on Saturdays, Sundays and public holidays.

7.55 DRS may make provision for lodgement of documents electronically and also outside the usual opening hours. Any documents lodged electronically after 11:59pm will be deemed to have been received on the next day that DRS is open to the public for lodgement of documents in person.

7.56 The contact details for DRS are:

Phone:      1800 34 77 88

Address:   1 Oxford St, Darlinghurst, NSW 2010

Email:       drsenquiries@sira.nsw.gov.au

Lodging an application with DRS

7.57 A claimant may lodge an application with DRS by:

(a) application form – completing the approved DRS application form, and lodging it with DRS by post, email, or in person

(b) online application process – completing an approved online DRS application process through an electronic dispute management (EDM) system

(c) telephone – contacting DRS by telephone to make an application, which DRS will confirm in writing to the parties, confirming the nature and extent of the application.

7.58 An insurer or its representative must lodge an application with DRS by completing an approved online DRS application through electronic dispute management (EDM) system. If the EDM system or the insurer’s system is unavailable at the time of lodgement, the insurer may complete a DRS application form and lodge it with DRS by post, email or in person.

7.59 DRS will, as soon as practicable, and preferably within two business days, acknowledge receipt of the application, and will give notice of the application to the other party, providing them with access to the application and all supporting documents and materials.

Application requirements

7.60 An application to DRS must include:

(a) all requirements specified in any approved application form

(b) all requirements specified in any approved online application process through any EDM system

(c) all information requested by a DRS officer while a telephone application is being made.

7.61 A claimant who is making an application should list all documents relevant to their application, but they do not need to attach copies of documents or materials they have previously provided to the insurer. The claimant only needs to provide copies of new documents or materials.

7.62 The insurer is required to provide to DRS all of the documents or materials in its possession relevant to the proceedings, including documents and materials listed in the application by the claimant and all documents the claimant has previously provided to the insurer.

7.63 When providing the documents through the EDM, the insurer must upload the documents individually and categorise them, by selecting the most relevant category for each document. Failure to categorise documents lodged by an insurer may result in an application being rejected.

7.64 DRS may decline to accept an application if the application does not comply with the above requirements, and will notify the parties as soon as practicable, providing brief reasons for its decision.

7.65 An applicant may withdraw or amend an application to DRS online, by letter, telephone, email, or in person at any time before DRS notifies the parties of the outcome. DRS will confirm the withdrawal or amendment of the application in writing to the parties.

Lodging a reply with DRS

7.66 A reply should be lodged as soon as practicable by a respondent and within any time limits specified in the Act, the Regulation or this Part of the Motor Accident Guidelines.

7.67 A claimant may lodge a reply to an application with DRS by:

(a) reply form – completing the approved DRS reply form, and lodging it with DRS by post, email, or in person

(b) online reply process – completing an approved online DRS reply process through an EDM system

(c) telephone – contacting DRS by telephone, which DRS will confirm in writing to the parties, confirming the nature and extent of the claimant’s reply.

7.68 An insurer or its representative must lodge a reply with DRS by completing an approved online DRS application through the EDM. If the EDM or the insurer’s system is unavailable at the time of lodgement, the insurer can complete a DRS application form and lodge it with DRS by post, email or in person.

7.69 As soon as practicable, and preferably within two business days of receiving the reply, DRS will acknowledge receipt of the reply to the respondent will give notice of the reply to the applicant, providing them with access to the reply, all supporting documents and materials and opportunity to make any further submissions.

Reply requirements

7.70 A reply to an application must include:

(a) all requirements specified in any approved reply form for responding to an application

(b) all requirements specified in any approved online reply process through any EDM system for responding to an application

(c) all information requested by an officer of DRS while a telephone reply is being made.

7.71 A claimant who is lodging a reply should list all documents relevant to their reply, but they do not need to attach copies of documents or materials they have previously provided to the insurer. The claimant only needs to provide copies of documents or materials not previously provided.

7.72 The insurer must provide to DRS all of the documents or materials in its possession relevant to the application and reply, including documents and materials listed in the reply that the claimant has previously supplied to the insurer. When providing the documents through the EDM, the insurer must upload the documents individually and categorise them, by selecting the most relevant category for each document. Failure to categorise documents may result in the reply being rejected.

7.73 DRS may decline to accept a reply if the reply does not comply with the above requirements. DRS may also proceed to hear and determine an application in the absence of a reply.

7.74 An officer of DRS may reject any form, part of a form or supporting document if it does not substantially comply with this Part of the Motor Accident Guidelines, unless the non‑compliance is technical and of no significance.

Representation

7.75 If the claimant is represented in respect of an application before DRS:

(a) it is sufficient notification for a decision-maker, officer of DRS or an insurer to send any document required to be sent to the claimant to the representative, and

(b) a decision-maker or officer of DRS may contact the claimant directly in relation to the application before DRS to make arrangements for medical examinations, teleconferences or assessment conferences where the attendance of the claimant in person may assist in the resolution or determination of the issues in dispute.

7.76 If the insurer is represented in respect of an application before DRS:

(a) it is sufficient notification for a decision-maker, officer of DRS or a claimant to send any document required to be sent to the insurer to the representative, and

(b) a decision-maker or officer of DRS may contact the insurer directly in relation to the application before DRS.

7.77 If a party retains a representative or changes their representative after an application is lodged at DRS, that party or their representative must notify DRS and the other party of the change in representation as soon as possible.

Legal incapacity and appointed representatives

7.78 A claimant who is a person under legal incapacity may not make any application, or refer any matter, or carry on proceedings at DRS except by an appointed representative, under section 7.47(1) of the Act.

7.79 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.

7.80 A person may be appointed to represent the person under legal incapacity in accordance with this Part of the Motor Accident Guidelines, under section 7.47(2) of the Act.

7.81 An appointed representative may do anything that this Part of the Motor Accident Guidelines allows or requires a party to do, and anything required in this Part of the Motor Accident Guidelines of that party is also required of the appointed representative.

7.82 If legal incapacity ends during the course of proceedings – for example where a person turns 18 years of age – the appointed representative will no longer be appointed as the claimant’s representative.

7.83 A person may make an application to DRS for appointment as an appointed representative for a claimant at any time.

7.84 If the claimant already has an appointed representative, the representative should notify DRS and the other party of the terms of that existing appointment.

7.85 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.

7.90 An application for appointment as an appointed representative for a claimant under legal incapacity may be referred to a claims assessor for determination.

7.87 The application must include:

(a) evidence that the claimant is a person under legal incapacity

(b) evidence that the proposed representative consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

7.88 A claims assessor may determine their own procedure, is not bound by the rules of evidence and may inquire into any matter relevant to the proposed appointment in such manner as they think fit.

7.89 A claims assessor must issue a decision on whether or not to appoint a person as an appointed representative for a claimant as soon as practicable, preferably within seven days of the lodgement of the application, providing brief reasons for that decision.

7.90 An appointed representative of a claimant under legal incapacity may apply to a claims assessor to cease their appointment.

7.91 If an appointed representative for a claimant under legal incapacity ceases their appointment, the DRS proceedings will be stayed pending the appointment of a new representative for the claimant under a legal incapacity.

7.92 A claims assessor may decide that a person is to be an appointed representative for a specified period of time, such as until a claimant turns 18 years of age within the meaning of section 7.47(2) of the Act.

Interpreters

7.93 If a party indicates that an interpreter is required in relation to an application to DRS, an officer of DRS will arrange for an interpreter to be available when required as part of the dispute resolution process, and DRS will meet the costs of the interpreter.

7.94 If a decision-maker indicates that an interpreter would assist their determination of an application to DRS, an officer of DRS will arrange for an interpreter to be available when required as part of the dispute resolution process, and DRS will meet the costs.

7.95 Interpreters and translators accredited by National Accreditation Authority for Translators & Interpreters (NAATI) will be preferred; however, a non‑NAATI accredited interpreter may be used at the discretion of DRS. DRS will provide reasons where it considers that a non-NAATI accredited interpreter is required.

Time limits on applications

7.96 A DRS decision-maker may, if the circumstances justify, abridge or extend any time limit fixed by this Part or by a direction of a decision‑maker.

7.97 In considering whether to abridge or extend any time limit, a DRS decision-maker will consider all relevant factors and circumstances surrounding the claim and the application, including:

(a) the objects of the Act

(b) the objects of DRS

(c) the obligations and duties of the parties and DRS

(d) the reasons for seeking expedition or extension of time

(e) the submissions, if any, of the parties

(f) the interests of both parties to the application.

7.98 A DRS decision-maker may extend a time limit before or after the time has expired.

7.99 Where a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time will be counted exclusive of that day or of the day of that act or event.

7.100 Where, apart from this subsection, the period in question, being a period of five days or less, would include a day on which DRS is closed for lodgement in person, that day will be excluded.

7.101 Where the last day for doing a thing is a day on which DRS is closed for lodgement in person, the thing may be done on the next day on which the registry is open for lodgement in person.

7.102 A party may request that an application to DRS be expedited by notifying DRS and the other party, providing reasons why the application should be expedited.

7.103 In the absence of a request by a party, an officer of DRS or a decision-maker may also determine that an application should be expedited.

7.104 In considering whether an application should be expedited, DRS will consider all relevant factors and circumstances surrounding the claim and the application, including:

(a) the objects of the Act

(b) the objects of DRS

(c) the obligations and duties of the parties and DRS

(d) the reasons for seeking expedition

(e) the submissions, if any, of the other parties

(f) the interests of both parties to the application

(g) the interests of other parties to other disputes, particularly regarding the equity of prioritising the application seeking expedition ahead of other applications.

7.105 If an application is to be expedited, DRS will take all reasonable steps to ensure the application is dealt with as quickly as possible.

Documents and other supporting material

Language requirements

7.106 If a party wishes to lodge a document with DRS in a language other than English, that party is responsible for arranging for the document to be translated.

7.107 Documents in a language other than English lodged with DRS should be accompanied by an English translation, and a declaration by the translator that the translation is an accurate translation.

7.108 If a party is unable to arrange for such a document to be translated, DRS will arrange to have the document translated, with the insurer to pay the costs of translation.

Surveillance images

7.109 If surveillance images or footage are to be lodged with DRS, they should be lodged at the same time the party lodges the application or reply, and:

(a) all surveillance images or footage relevant to the issues in dispute must be lodged, not just some selected images or selected footage

(b) any investigators or loss adjusters report concerning those surveillance images or footage must also be lodged

(c) the surveillance images or footage must be provided in an unedited digital format, with details also provided advising which specific portions of the images or footage are relevant to the issues in dispute.

7.110 Surveillance images and footage held by the Authority that contains personal information are subject to the Privacy and Personal Information Protection Act 1998 (NSW).

Medical imaging

7.111 To provide DRS with medical imaging:

(a) all relevant medical imaging must be listed by the parties in the application or reply, and, if an electronic copy is available, it must be included in the application or reply

(b) the original medical image should not be lodged, and only a copy of the medical image or a report on the content of the medical imaging should be lodged

(c) the claimant should take the original medical imaging listed in the application or reply, whether in a physical or electronic format, to any relevant medical assessment examination.

7.112 A medical assessor will consider any original medical imaging and accompanying reports that are taken to the examination, and:

(a) where the medical imaging or reports have not previously been included in the documentation supporting the application or reply and exchanged by the parties, the medical assessor will list the medical imaging in their certificate and attach a copy of any associated reports to their certificate

(b) the party in possession of the medical imaging will make those images, or an electronic version of those images, available to the other party to inspect on request.

Additional documents

7.113 Parties may only lodge additional documents after they have lodged their application or reply either:

(a) with the consent of the other party, or

(b) in response to a specific request or direction from the decision-maker or an officer of DRS, and

(c) with approval of the decision-maker or an officer of DRS, having considered all of the circumstances of the application and the claim.

Unknown delivery dates

7.114 For the purpose of this Part of the Motor Accident Guidelines, if the date of delivery or receipt of a document cannot be ascertained, and the document was delivered to the address given by a claimant or insurer for delivery of documents, then the following deeming provisions apply.

7.115 Unless there is evidence to the contrary, the documents are to be taken to be received by the person as follows:

(a) in the case of personal delivery to a physical address, the day the document is delivered to that address

(b) in the case of postage to a postal address, seven business days after the document is posted as provided in section 76(1)(b) of the Interpretation Act 1987

(c) in the case of sending to a DX box, two business days after the document is left in that DX box or in another DX box for transmission to that DX box

(d) in the case of an email to an email address, on the day the email is sent if received by 11:59pm

(e) in the case of a facsimile to a facsimile number, on the day the facsimile is sent if received before 11:59pm.

DRS electronic dispute management system

7.116 DRS may establish an EDM system to help support the objects of DRS, including to:

(a) enable applications and replies to DRS to be created, lodged, exchanged and accessed in an electronic form

(b) enable documents with respect to applications to DRS to be created, exchanged, lodged, issued and accessed in electronic form by the parties and DRS

(c) enable parties to applications to DRS to communicate in an electronic form with DRS and with other parties

(d) enable information concerning the progress of applications to DRS to be provided in an electronic form to parties to those disputes

(e) enable officers of DRS and decision-makers to communicate in an electronic form with parties to applications to DRS.

7.117 DRS may issue a protocol for the use of the EDM system, and establish requirements for persons to become registered users of the EDM system, in addition to decision-makers and officers of DRS.

7.118 Subject to any protocol, a person other than a decision-maker and an officer of DRS may not use the EDM system for a particular application unless they are a registered user of the EDM system and are:

(a) a party to the application to DRS, or

(b) a legal practitioner or agent representing a party to the application regarding to DRS.

7.119 In relation to any application, the level of access to the EDM system to which a user is entitled, and the conditions of use applicable to a user, are subject to any decision of DRS.

7.120 Documents and information lodged via the EDM system may be dealt with in accordance with the provisions of the Electronic Transactions Act 2000 (NSW).

7.121 When DRS sends documents or forwards correspondence to a party who is a registered user of the EDM system, it will generally only do so via electronic communication to that party through the EDM system.

Managing applications made to DRS

7.122 The application will be allocated to an officer of DRS as the contact point for the parties, who will be responsible for the management of the application.

7.123 DRS will notify the parties of how the application will be managed, and about any preliminary issues arising in the application, as soon as practicable, and preferably within two business days of receiving the application.

7.124 DRS will consider the application, reply, documentation and materials to triage the application and determine how it will be managed, and identify and determine any relevant preliminary issues arising in the application, including:

(a) jurisdiction – whether DRS may accept the application

(b) issues in dispute – the issues that are the subject of the application that are in dispute between the parties and whether it may be possible to narrow or resolve those issues, including issues relating to admissibility of evidence under section 7.52 of the Act

(c) process – the process for resolving the issues in dispute between the parties that are the subject of the application

(d) decision-maker – an appropriate decision-maker or decision-makers to determine the application

(e) additional documentation and materials – if any additional documentation and materials relevant to the application are required from the parties to help resolve the issues in dispute and to determine the application.

7.125 The decision-maker who the application is then referred to is not bound by any determination made by DRS in triaging the application.

7.126 In managing the application, DRS may:

(a) contact the parties by email, letter, telephone, in person, teleconference, videoconference, face-to-face meetings or via any other method as appropriate

(b) inquire into any matter relevant to the issues in dispute in such manner as it thinks fit

(c) clarify the issues in dispute and whether it may be possible for the parties to narrow or resolve those issues.

7.127 DRS may defer the allocation of the application for a period of time that it considers appropriate in the following circumstances:

(a) further information or documentation has been requested

(b) there are other claims or issues in dispute or likely to be in dispute which would more conveniently be determined at the same time

(c) if DRS is satisfied that the matter may be resolved by the parties and to allow the parties an opportunity to settle the claim

(d) the issues in dispute involve medical disputes which require a medical assessment and that medical assessment has not occurred

(e) the claimant’s injury has not sufficiently recovered to enable the claim to be quantified having regard to any medical evidence attached to the application or reply

(f) if there are other good reasons to defer the allocation of the application.

7.128 If DRS proposes to defer the application for more than 3 months, it will give the parties an opportunity to make submissions on that proposed deferral.

7.129 DRS will keep the parties informed of the application’s progress.

Dismissing an application

7.130 A DRS decision-maker may at any stage dismiss an application if the decision-maker is satisfied that:

(a) the applicant has withdrawn the application

(b) the application is not likely to be ready to be determined within the next 12 months

(c) the applicant failed without reasonable excuse to comply with the DRS decision-maker’s directions

(d) the applicant has ceased to pursue or prosecute the dispute, application or the claim

(e) it is not a dispute under the Act

(f) the application is frivolous, vexatious, misconceived or lacking in substance

(g) the application is being used for an improper purpose or is otherwise an abuse of process

(h) the application is made by a person who has died after the application was referred to DRS, unless a copy of the grant of probate or letters of administration or equivalent are provided, and the DRS decision-maker is satisfied that the estate seeks to pursue the claim or the application.

Applying for a different decision-maker

7.131 An application may be dismissed at the applicant’s request or if determined by the DRS decision-maker. If the DRS decision-maker proposes to dismiss the application, the decision-maker must give all parties to the dispute a reasonable opportunity to make submissions about the proposed dismissal by writing to parties to request the provision of submissions on or before a given date.

7.132 Either party may apply to DRS in writing to have the application reallocated to a different merit reviewer, proper officer, medical assessor or claims assessor.

7.133 A request for reallocation must include submissions and reasons as to why the party is of the view that the decision-maker or proper officer should not determine the dispute or make a proper officer decision.

7.134 The party seeking the reallocation must provide a copy of the request for reallocation and the submissions in support to the other party to the dispute.

7.135 Where request for reallocation concerns a merit reviewer or claims assessor, DRS will forward the application for reallocation to the decision-maker to whom the application has been allocated. If the decision-maker determines that it is not appropriate for them to determine the application or dispute, the decision-maker will notify the parties and return the application to DRS for reallocation.

7.136 Where an application concerns a medical assessor, DRS will forward the application for reallocation to a proper officer. If a proper officer determines that it is not appropriate for the medical assessor to determine the application or dispute, the proper officer will reallocate the matter and notify the parties.

7.137 DRS, or the proper officer in case of medical assessments, may reallocate an application to a different decision-maker if the original decision-maker becomes unwell, retires or is otherwise unable to determine the application or is no longer appropriate to determine the application.

7.138 DRS will advise the parties of the decision in response to the request for reallocation.

Contacting decision-makers

7.139 Parties must not correspond with a decision-maker directly in respect of a current or finalised application, and should direct any communication to DRS, unless otherwise directed by the decision-maker.

7.140 All correspondence to, and communication with, DRS and a decision-maker must be directed to DRS, unless otherwise directed by the decision-maker.

Publication of decisions

7.141 Details of the decisions of merit reviewers and claims assessors may be published in accordance with this Part of the Motor Accident Guidelines, under section 7.50 of the Act.

7.142 Publication of decisions is in the public interest. It promotes public confidence, transparency and accountability in decision-making within the scheme. It provides guidance and education to scheme stakeholders including claimants, insurers and representatives. This helps to improve claims management, insurer decision making and minimises disputes in the scheme. DRS operates under a legislative presumption in favour of publishing the decisions of merit reviewers and claims assessors, which may include:

(a) publication of a decision in full

(b) publication of a decision in part

(c) publication of a de-identified and anonymised version of a decision.

7.143 A claimant may request that DRS withhold its decision from publication at any time up to 14 days after the decision is issued. DRS may withhold from publishing all or part of a decision, regardless of whether or not a claimant requests that DRS does so, if it is desirable to do so because of the confidential or sensitive nature of the information, or for any other reason.

7.144 DRS may publish decisions of merit reviewers and claims assessors on the DRS EDM system, on the Authority’s website (www.sira.nsw.gov.au) and/or on the Australasian Legal Information Institute (AustLII) website (www.austlii.edu.au) or by other means.

7.145 Further information about publication of decisions can be found in theAuthority’s Policy for publication of decisions by the Dispute Resolution Service.

Merit review

Guideline powers

7.146 This Part of the Motor Accident Guidelines, in relation to merit reviews by DRS, is made under the Act, including under Division 7.4, section 7.12 of the Act.

Requesting a merit review

7.147 A merit review application may be made after:

(a) the decision has been the subject of an internal review by the insurer

(b) the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the required timeframe

(c) the insurer has declined to conduct an internal review.

7.148 The Regulation prescribes a number of merit review matters where an internal review is not required before an application may be made for a merit review, under Part 5, Division 1, clause 10.

Time for requesting a merit review

7.149 An application for merit review must be made within 28 days of the claimant receiving the insurer’s decision, meaning:

(a) for merit review matters 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 of the reviewable decision
  • within 28 days of the claimant receiving the insurer’s decision to decline to conduct the internal review
  • if the insurer has failed to complete the internal review and notify the claimant of the outcome within the period required under section 7.9(4)-(5) and ‘The insurer review decision’ section of this Part of the Motor Accident Guidelines, within 28 days of that date.

(b) for merit review matters prescribed by the Regulation not to require an internal review before a merit review, the merit review application must be made within 28 days of the claimant receiving the insurer’s reviewable decision.

7.150 If a claimant applies for a merit review more than 28 days after receiving the insurer’s decision, DRS may  accept a late application for a merit review, consistent with section 1.3 of the Act, if an officer of DRS believes the exercise of that discretion would best promote the objects of the Act.

Application requirements

7.151 A claimant may apply for a merit review by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

7.152 In addition to the standard DRS application requirements, an application for merit review must also include details of:

(a) the decision of the insurer that is referred for merit review

(b) the alternative decision sought in the merit review

(c) issues under review – the elements of the original decision that the party wishes to be reviewed

(d) the reasons the decision should be changed

(e) any additional documentation or materials that the party considers relevant to a review of the decision

(f) any regulated costs sought.

7.153 DRS may decline to conduct a merit review if the application does not comply with the above clause.

Replying to a merit review application

Time for replying to a merit review application

7.154 An insurer may lodge a reply to an application for a merit review according to the timeframes listed in Table 7.2 (below) for each of the different types of merit review matters:

Table 7.2: Merit review notification period

Merit review matter types

Reply period

Damages claim merit review matters (Schedule 2, clause 1(w) to (z)(1))

14 days

Other merit review matters not listed above (Schedule 2, clause 1)

7 days

7.155 If an insurer lodges a reply later than the period allowed, DRS may consider a late reply to an application for merit review.

Reply requirements

7.156 An insurer may reply to an application for a merit review by making a reply to DRS in accordance with the standard DRS reply requirements set out in the ‘Lodging a reply with DRS’ section of this Part of the Motor Accident Guidelines.

7.157 In addition to the standard DRS reply requirements, the insurer’s reply to an application for merit review must also include details of the following information:

(a) the response to the alternative decision sought in the merit review application

(b) the response to the reasons the claimant believes the decision should be changed

(c) the response to any regulated costs sought (if applicable).

7.158 DRS may decline to consider a reply to an application for a merit review if the reply does not comply with the above clause.

The merit review

Managing the merit review

7.159 The application for merit review will be managed in accordance with the provisions set out in the ‘Managing applications made to DRS’ section of this Part of the Motor Accident Guidelines.

7.160 In addition to the standard application management provisions, DRS may also arrange for the merit review application to be dealt with by a merit reviewer, under section 7.12(2) of the Act.

The merit reviewer

7.161 The merit review will be dealt with by a merit reviewer who has been appointed by the Authority, under Division 7.2, section 7.4 of the Act.

7.162 DRS will advise the parties of the merit reviewer who has been allocated to deal with the merit review.

The merit review process

7.163 The merit review must be determined in line with section 7.13 of the Act.

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

7.165 The merit reviewer may determine the merit review procedure, is not bound by the rules of evidence and may inquire into any matter relevant to the issues in dispute in such manner as they think fit.

7.166 The merit reviewer must act with as little formality as the circumstances of the claim permit and according to equity, good conscience and the substantial merits of the matter, without regard to technicalities and legal forms.

7.167 The merit reviewer must ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined.

7.168 The merit reviewer may consider material that was not provided to the original decision-maker. The merit reviewer is required to decide what the correct and preferable decision is having regard to the material before the reviewer, including any relevant factual material, and any applicable written or unwritten law, under section 7.13(1) of the Act.

The merit review decision

7.169 The merit reviewer is to issue the parties with a certificate as to their determination, including a brief statement of reasons for the determination, under section 7.13(4) of the Act.

7.170 An obvious error in the merit reviewer’s certificate, or statement of reasons attached to the certificate, may be corrected at the request of either party, or as a result of the merit reviewer’s identification of an obvious error. Any such application is to be made to DRS in writing, setting out details of the obvious error and the terms of the suggested correction.

7.171 The party making the application is to send a copy of the application to the other party.

7.172 Examples of obvious errors in the certificate include, but are not limited to:

(a) a clerical or typographical error in the certificate

(b) an error arising from an accidental slip or omission

(c) a defect of form

(d) an obvious inconsistency between the certificate and the reasons explaining the certificate.

Merit reviewer’s assessment of legal costs

7.173 Statutory benefits costs disputes (where there is no other merit review matter before the merit reviewer):

(a) a dispute about the legal costs and other costs and expenses incurred by the claimant in a statutory benefits claim may be referred to DRS to be dealt with by a merit reviewer as to whether the costs and expenses incurred by the claimant are reasonable and necessary, under section 8.10(1) and Schedule 2, clause 1(aa) of the Act

(b) a dispute about the apportionment of legal costs between two Australian legal practitioners, in relation to a statutory benefits claim, may be referred to DRS to be dealt with by a merit reviewer, under Part 6, Division 2, clause 22(4)(a) of the Regulation.

7.174 Costs in a merit review application:

(a) when making a determination and issuing a certificate under section 7.13(4) of the Act about a merit review matter arising in a statutory benefits claim, the merit reviewer may include an assessment of the legal costs relating to that merit review in the merit reviewer’s certificate and reasons, under Part 8, sections 8.10(3) and (4) of the Act.

7.175 A merit review decision is binding on the parties under section 7.14(3) of the Act, subject to the right of review that exists under section 7.15 of the Act.

The effect of the merit review decision

7.176 When a merit review decision takes effect depends on the nature of the merit review decision that is made, as established in section 7.14(1)-(2) of the Act.

7.177 The insurer must give effect to the merit review decision as quickly as is practicable after receiving notice of the decision.

7.178 If the merit review decision results in an increase in weekly payments of statutory benefits, under section 7.14(4)-(5) of the Act, the insurer must commence payment of the increased weekly payments within seven days of the issue of the certificate as to the merit reviewer’s determination.

7.179 Where a merit review decision requires the insurer to make payments to the claimant for entitlements for prior periods which have not been paid, the insurer must make that payment as quickly as is practicable.

7.180 On receiving the merit review certificate, the insurer must advise the claimant about the effect of the decision within 7 days, providing the claimant with details of:

(a) how and when the insurer will give effect to the merit review decision

(b) the impact of the merit review decision on the claimant and their claim.

Legal costs for merit reviews

7.181 Schedule 1, Part 1, clause 1(1) of the Regulation makes provision for the maximum costs for legal services provided to a claimant or an insurer in connection with a merit review under Division 7.4 of the Act.

7.182 Where costs for legal services are payable by the insurer, the insurer must pay the invoice within 20 days of its receipt.

Requesting a review of a merit review decision by a review panel

7.183 A claimant or an insurer may apply under section 7.15(1) of the Act to the proper officer to refer a decision of a single merit reviewer to a review panel of merit reviewers for review by making an application to DRS.

7.184 An application for the referral of a decision of a single merit reviewer to a review panel may only be made on the grounds that the decision was incorrect in a material respect under section 7.15(2) of the Act.

Time for requesting a review

7.185 This Part of the Motor Accident Guidelines makes provision for limiting the time within which an application for review of a decision of a single merit reviewer may be made, under section 7.15(6) of the Act.

7.186 An application for review of a decision of a single merit reviewer must be made within 28 days of the date of the decision was sent by DRS.

7.187 The proper officer may decline an application for review if it is made more than 28 days after the date the decision was sent by DRS.

Application requirements

7.188 A party may apply for a review by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

7.189 In addition to the standard DRS application requirements, an application for a review must also include details of:

(a) the decision of the single merit reviewer that is the subject of the application for review

(b) the reasons why the decision is incorrect in a material respect.

7.190 DRS may decline to accept the application if it does not comply with the above clause.

Replying to an application for review of a merit review decision by a review panel

Time for replying to a review application

7.191 A respondent may lodge a reply within seven days of receiving the application, by lodging that reply with DRS.

7.192 If the respondent lodges a reply later than seven days of receiving the application, DRS may consider a late reply.

Reply requirements

7.193 A respondent may reply to an application for a review by lodging a reply with DRS in accordance with the standard DRS reply requirements set out in the ‘Lodging a reply with DRS’ section of this Part of the Motor Accident Guidelines.

7.194 In addition to the standard DRS reply requirements, a reply to an application for a panel merit review must also include a response to the reasons given in the application.

7.195 DRS may decline to consider a reply to an application for a panel review of a decision if the reply does not comply with the above clause.

The review of a merit review decision by a review panel

Managing the review application

7.196 DRS must arrange for a proper officer to consider the application and make a determination under section 7.15(3) of the Act on whether there is reasonable cause to suspect that the decision of the single merit reviewer was incorrect in a material respect.

7.197 The proper officer will advise the parties as soon as practicable, and preferably within 14 days of the expiry of the period for reply, whether they are satisfied that there is reasonable cause to suspect that the merit review decision was incorrect in a material respect, and whether the application is to be referred to a review panel.

The review panel

7.198 The review panel will be comprised of at least two merit reviewers who have been appointed by the Authority under section 7.4 of the Act. The single merit reviewer whose decision is under review will not be part of the panel.

7.199 DRS will advise the parties of the individual merit reviewers who have been allocated to the merit review panel.

The review panel process

7.200 The review panel 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 merit review. This may include undertaking the review on the papers, using teleconferences, video conferences or face-to-face meetings as appropriate.

7.201 The review panel may determine the review procedure, is not bound by the rules of evidence and may inquire into any matter relevant to the issues in dispute in such manner as it thinks fit.

7.202 The review panel may consider material that was not before the single merit reviewer.

7.203 The review panel must issue the parties with a certificate as to the panel’s determination, attaching a brief statement of reasons for the determination.

7.204 The review panel must determine the application as soon as practicable, and preferably within 28 days of the proper officer’s decision. A review panel determination is not invalid if it is made after that period expires.

7.205 The effect of a review panel decision under Division 7.4, section 7.15(5) of the Act is the same as the status and effect of a review decision under Division 7.4, section 7.14 of the Act, and the provisions of this Part of the Motor Accident Guidelines relating to merit review decisions apply equally to review panel decisions.

Legal costs for review panel matters

7.206 Schedule 1, Part 1, clause 2(3) of the Regulation makes provision for the maximum costs for legal service provided to a claimant in connection with a matter relating to the assessment of a medical dispute.

7.207 Where costs for legal services are payable by the insurer, the insurer must pay the invoice within 20 days of its receipt.

Medical assessment

Guideline powers

7.208 This Part of the Motor Accident Guidelines, in relation to medical assessments by the DRS, is made under the Act, including under Division 7.5, section 7.29 of the Act.

7.209  Schedule 2, clause 2 of the Act declares that there are a number of medical assessment matters that may be the subject of an application for a medical assessment by DRS.

Requesting a medical assessment

7.210 A medical dispute about a decision of an insurer may not be referred for assessment by a claimant until either:

(a) the decision has been the subject of an internal review by the insurer

(b) the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the required period

(c) the insurer has declined to conduct a review.

Time for requesting a medical assessment

7.211 An application for a medical assessment may be lodged at any time, and should be lodged as soon as practicable after the claimant receives either:

(a) the insurer’s internal review of the reviewable decision

(b) the insurer’s decision to decline to conduct the internal review

(c) if the insurer has failed to complete the internal review and notify the claimant of the internal review within the required period, as soon as practicable after that due date.

Application requirements

7.212 This Part of the Motor Accident Guidelines makes provisions relating to the procedures for the referral of disputes for assessment, under section 7.29 of the Act.

7.213 A referral for medical assessment is made by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

Replying to a medical assessment application

Time for replying to a medical assessment application

7.214 A party who receives an application for medical assessment lodged with DRS by another party or by a merit reviewer, claims assessor or the court will be given the opportunity to respond.

7.215 The respondent may lodge a reply to an application for a medical assessment according to the timeframes listed in Table 7.3 for each of the different types of medical assessment matters:

Table 7.3: Medical assessment notification period
Medical assessment mattersReply period
1.Permanent impairment medical assessment matters (Schedule 2, clause 2(a))14 days
2.Treatment and care medical assessment matters
(Schedule 2, clause 2(b) and (c))
14 days
3.Earning capacity impairment medical assessment matters (Schedule 2, clause 2(d))14 days
4.Minor injury medical assessment matters (Schedule 2, clause 2(e))14 days
5.Further medical assessments (section 7.24)14 days
6.Review of a medical assessment (section 7.26)14 days
7.Non-binding opinion medical assessments (section 7.27)7 days

7.216 If the respondent lodges a reply later than the period allowed in Table 7.3 above, DRS may decline to consider the reply.

Reply requirements

7.217 A party may reply to an application for a medical assessment by making a reply to DRS in accordance with the standard DRS reply requirements set out in the ‘Lodging a reply with DRS’ section of this Part of the Motor Accident Guidelines.

The medical assessment

Managing the medical assessment

7.218 The application for a medical assessment will be dealt with in accordance with the provisions set out in the ‘Managing applications made to DRS’ section of this Part of the Motor Accident Guidelines and Part 7, Division 7.5 of the Act.

7.219 In addition to those standard application management provisions, DRS may also:

(a) arrange for the medical assessment application to be dealt with by one or more medical assessors, under section 7.20(2) of the Act

(b) provide to the medical assessor/s a copy of any certificates and reasons previously issued by DRS in relation to the same claimant, not limited to the same matter, after the parties have been provided a copy of these documents.

The medical assessor/s

7.220 The medical assessment will be conducted by a medical assessor who has been appointed by the Authority, under Division 7.2, section 7.4 of the Act.

7.221 DRS will advise the parties of the individual medical assessor or medical assessors who have been allocated to conduct the medical assessment.

The medical assessment process

7.222 The medical assessment 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 medical assessment. This may include undertaking the assessment on the papers, using teleconferences, videoconferences, face-to-face meetings or medical examinations as appropriate.

7.223 The medical assessor may determine the medical assessment procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as they think fit.

7.224 Medical assessments are conducted in private and are not open to the public. An examination may not be recorded by the claimant or any other person unless with the prior agreement of the proper officer, the medical assessor and the consent of the claimant.

Contacting treatment providers

7.225 A medical assessor may, at their discretion, communicate with any of the claimant’s treating health practitioners in relation to health or safety issues noted by a medical assessor as being of an urgent or serious nature, where necessary to prevent or lessen a serious or imminent threat to life or health, or with the consent of the claimant. Any such communication may be considered personal health information and should not form part of the medical assessment application, decision, reasons or any certificate.

Support persons at medical assessments

7.226 If the person being assessed is a person under legal incapacity, a parent, tutor, next friend, legal guardian, carer or other support person or appointed personal representative may be present during an assessment.

7.227 If the person being assessed is not a person under legal incapacity, a support person may only be present during an assessment if the medical assessor conducting the assessment is satisfied it is reasonable in the circumstances. During the conduct of such an assessment, any person other than the claimant who has been permitted to be present may not respond to questions or speak on behalf of the claimant, unless invited to do so by the medical assessor.

7.228 Legal, medical or other representatives of the claimant or any other party may not be present during an assessment unless the proper officer gives prior approval and is satisfied that the circumstances warrant it.

Cancelling a medical assessment

7.229 A claimant must notify DRS as soon as they become aware that they will be unable to attend a medical assessment or medical review panel assessment arranged for them.

7.230 If the claimant has given DRS at least 72 hours or more notice before the scheduled time for an assessment, the claimant will not be required to pay any cancellation fees.

7.231 If the claimant, without a reasonable excuse, gives DRS less than 72 hours’ notice before the scheduled time for an assessment , or fails to attend an assessment, or attends an assessment late that results in a cancellation, the claimant will be required to pay a cancellation fee equal to the amount of any cancellation fee that DRS is required to pay to the medical assessor or interpreter.

7.232 DRS will send a notification to the claimant seeking payment of any such cancellation fee.

7.233 A new date for an assessment will only be scheduled if the proper officer is satisfied that the claimant has provided to DRS either:

(a) a reasonable excuse for the late attendance or non–attendance

(b) evidence that payment of the cancellation fee would cause the claimant financial hardship

(c) a signed Irrevocable Authority and Direction in a form acceptable to DRS, addressed to the insurer, directing the insurer to pay the cancellation fee from the claimant’s damages claim settlement monies

(d) payment of the cancellation fee.

The medical assessment decision

7.234 The medical assessor to whom a medical dispute is referred must give a certificate as to the matters referred for assessment as soon as practicable, and preferably within 14 days of the medical examination of the claimant, or where there is no medical examination of the claimant, preferably within 14 days of the medical assessor receiving the application for assessment. However, a medical assessor’s decision is not invalid because it is made after that period has expired.

7.235 An obvious error in the medical assessor’s certificate, or statement of reasons attached to the certificate, may be corrected at the request of either party, or as a result of the medical assessor’s identification of an obvious error. Any such application is to be made to DRS in writing, setting out details of the obvious error and the terms of the suggested correction.

7.236 The party making the application is to send a copy of the application to the other party.

7.237 If the medical assessor is satisfied that the certificate issued under section 7.23 contains an obvious error, the medical assessor may issue a replacement certificate to correct the error under section 7.23(9) of the Act.

7.238 On receiving the medical assessment decision in the certificate, the insurer is to advise the claimant about the effect of the decision, providing the claimant with details of:

(a) how and when the insurer will give effect to the medical assessment decision; and

(b) the impact of the medical assessment decision on the claimant and their claim.

Other matters relating to medical assessments

Combined certificate of impairment

7.239 If a combined certificate is required under section 7.23(8) of the Act, a medical assessor nominated by the Authority must make an assessment of the total degree of permanent impairment resulting from all the injuries and must give a combined certificate as to that total degree of permanent impairment. This must be issued to the parties as soon as practicable, and preferably within three business days of receiving all of the single medical assessors’ certificates.

Non-binding opinions

7.240 The medical assessor to whom a medical assessment matter has been referred for the purpose of providing a non–binding opinion under section 7.27 of the Act must give the parties and the merit reviewer or claims assessor a statement of their opinion as soon as practicable, and preferably within seven days of any medical examination of the claimant, or where there is no medical examination of the claimant, preferably within seven days of receiving the referral for a non–binding opinion.

7.241 The medical assessor’s statement of their opinion must set out the reasons for their opinion on the matters referred.

Incomplete certificates

7.242 A certificate is incomplete when it does not comply with the requirement of section 7.23(7). If a medical assessor or review panel provides an incomplete certificate, DRS may refer the matter back to the medical assessor or review panel to ensure it complies with section 7.23(7).

7.243 Either party may request that the matter be referred back to the medical assessor or review panel due to an incomplete certificate by making an application to DRS.

7.244 Examples of incomplete certificates include, but are not limited to where:

(a) disputes and/or injuries are not referred to

(b) submitted documentation is not referred to

(c) a certificate is unsigned

(d) a certificate or parts of the certificate are omitted.

7.245 In considering whether or not the certificate is incomplete, DRS may seek submissions from the parties.

7.246 After being notified of an incomplete certificate, the medical assessor must issue a complete certificate to the parties. To do this, the medical assessor may require a claimant to attend further examination.

Medical assessment applications about permanent impairment

7.247 In addition to the standard DRS application requirements, an application for a medical assessment about the degree of permanent impairment must also include evidence in support of the degree of permanent impairment asserted by the party.

7.248 DRS may refuse to accept the application if it does not comply with the above clause, under section 7.20(3) of the Act.

Medical assessment applications about minor injury

7.249 In addition to the standard DRS application requirements, an application for medical assessment about a minor injury must also include evidence in support of the injury asserted by the party.

7.250 DRS may refuse to accept the application if it does not comply with the above clause.

Further medical assessment

7.251 A medical assessment referred for assessment may be referred again for assessment, under section 7.24 of the Act. The grounds for further medical assessment are set out in Part 5, Division 3 of the Regulation.

Time for requesting a further medical assessment

7.252 An application for a further medical assessment may be made at any time under section 7.24(1)-(2) of the Act.

Managing the further medical assessment

7.253 The application for a further medical assessment will be managed in accordance with the DRS dispute application management approach set out in the ‘Managing applications made to DRS’ section of this Part of the Motor Accident Guidelines.

7.254 In addition to the standard application management provisions, DRS must arrange a proper officer to consider the application and make a determination under section 7.24(5) of the Act, on whether they are satisfied that the application meets the requirements for referral under section 7.24 of the Act and Part 5, Division 3, clause 13 of the Regulation.

7.255 The proper officer will advise the parties of that determination, providing brief reasons for the determination, within 14 days of the expiry of the period for the respondent to lodge a reply.

Scope of a further medical assessment

7.256 The matters in dispute in a further medical assessment can be limited by an agreement between the parties as to the degree of permanent impairment of an injured person that has resulted from a particular injury, or whether a particular injury was caused by a motor accident, under section 7.25 of the Act.

Requesting a review of a medical assessment by a review panel

7.257 This Part of the Motor Accident Guidelines sets out how a claimant or an insurer may apply for a review of a decision of a single medical assessor, under section 7.26(1) of the Act.

7.258 Either party may apply under section 7.26(1) of the Act to the proper officer to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review.

7.259 A combined certificate assessment cannot be the subject of review under this section, except by way of the review of any of the assessments of the single medical assessor on which the combined certificate assessment is based, under section 7.26(4) of the Act.

7.260 An application to refer a medical assessment of a single medical assessor to a review panel may only be made on the grounds that the decision was incorrect in a material respect, under section 7.26(2) of the Act.

7.261 A medical assessment may not be referred for review on more than one occasion, under section 7.26(3) of the Act.

Time for requesting a review

7.262 This Part of the Motor Accident Guidelines makes provision for limiting the time within which an application for review of a medical assessment of a single medical assessor may be made, under section 7.26(10) of the Act.

7.263 An application for review of a medical assessment of a single medical assessor must be made within 28 days of the date of the certificate is sent by DRS.

7.264 If a party applies for a review of a medical assessment more than 28 days after the date the certificate is sent by DRS, DRS may decline the application.

Application requirements

7.265 A party may apply for a review by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

7.266 In addition to the standard DRS application requirements, an application for a review must also include details of:

(a) the decision of the single medical assessor that is the subject of the application for review

(b) the reasons why the decision is incorrect in a material respect.

7.267 DRS may decline to accept the application if it does not comply with the above clause.

Replying to an application for review of a medical assessment by a review panel

Time for replying to a review application

7.268 A respondent who receives an application for a review of a decision of a single medical assessor may lodge a reply within 14 days of receiving the application.

7.269 If a respondent lodges a reply more than 14 days after receiving the application, DRS may decline to consider a reply.

Reply requirements

7.270 A respondent may reply to an application for a review by making a reply to DRS in accordance with the standard DRS reply requirements set out in the ‘Lodging a reply with DRS’ section of this Part of the Motor Accident Guidelines.

7.271 In addition to the standard DRS reply requirements, a reply to a review application must also include a response to the reasons given in the review application.

7.272 DRS may decline to consider a reply to a review application if the reply does not comply with the above clause.

The review of a medical assessment by a review panel

Managing the application

7.273 The application for a review will be managed in accordance with the provisions set out in the ‘Managing applications made to DRS’ section of this Part of the Motor Accident Guidelines.

7.274 In addition to those standard application management provisions, DRS must arrange for a proper officer to consider the application and make a determination under section 7.26(5) of the Act on whether there is reasonable cause to suspect that the medical assessment was incorrect in a material respect.

7.275 The proper officer will advise the parties as soon as practicable, and preferably within 14 days of the expiry of the period for a reply, whether they are satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, and whether the application is to be referred to a medical review panel, providing brief reasons for the decision.

The medical review panel

7.276 The medical review panel will be conducted by at least two medical assessors who have been appointed by the Authority under Division 7.2, section 7.4 of the Act. The single medical assessor whose medical assessment is under review will not be on the panel.

7.277 DRS will advise the parties of the individual medical assessors who have been allocated to conduct a particular medical review panel.

Scope of the medical review

7.278 The matters in dispute before a medical review panel can be limited by an agreement between the parties as to the degree of permanent impairment of an injured person that has resulted from a particular injury, or whether a particular injury was caused by a motor accident, under section 7.25 of the Act.

The medical review panel process

7.279 The review panel 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 medical assessment, which may include undertaking the panel review on the papers, using teleconferences, video conferences, face‑to‑face meetings or medical examinations as appropriate.

7.280 The medical review panel may determine the review procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as it thinks fit. This may include seeking the assistance of a merit reviewer or claims assessor to assist the panel to inquire into any matter relevant to the issues in dispute.

7.281 The review panel may consider material that was not provided before the medical assessment being reviewed was made.

The medical review panel decision

7.282 The medical review panel must confirm the single medical assessor’s certificate, or revoke that certificate and issue a certificate as to the medical review panel’s determination, under section 7.26(7) of the Act, including a statement of reasons for the determination.

7.283 The medical review panel is also to issue a new combined certificate to take account of the results of the review when required, under section 7.26(8) of the Act.

7.284 The review application will be determined as soon as practicable, and preferably within 28 days of the proper officer’s decision under section 7.26(5) of the Act. However, a medical review panel decision is not invalid if it is made after that period expires.

7.285 The status and effect of a medical review panel certificate under section 7.26(7) and section 7.26(8) of the Act is the same as the status and effect of a medical assessment under section 7.23 of the Act, and the provisions of this Part of the Motor Accident Guidelines relating to medical assessments apply equally to medical review panel certificates.

Costs and medical assessments

Expenses for attending a medical assessment

7.286 The insurer must pay the reasonable and necessary costs and expenses incurred by the claimant, and by a parent or other carer of the claimant in order to accompany the claimant, in attending a medical examination, under section 7.28 of the Act.

Legal costs for medical assessment matters

7.287 Schedule 1, Part 1, clause 2 of the Regulation makes provision for the maximum costs for legal services provided to a claimant or an insurer in connection with a matter relating to the assessment of a medical dispute.

7.288 Where an invoice for legal services is payable by the insurer, the insurer must pay the invoice within 20 days of its receipt.

Claims assessment

Guideline powers

7.289 This Part of the Motor Accident Guidelines, in relation to claims assessments by DRS, is made under the Act, including under Division 7.6, section 7.39 of the Act.

Damages settlement approval

Settlements requiring approval

7.290 If a claimant is not represented by an Australian legal practitioner, a claim for damages cannot be settled unless the proposed settlement is approved by DRS, under Division 6.4, section 6.23(2)(b) of the Act.

Requesting settlement approval

Time for requesting settlement approval

7.291 Division 6.4, section 6.23(1) of the Act provides for the timeframe to approve a settlement.

7.292 If a claimant and insurer have agreed to a proposed damages settlement, and the claimant is not represented by an Australian legal practitioner, the insurer must make an application to DRS on behalf of both the claimant and the insurer seeking a damages settlement approval, which the insurer must lodge as quickly as is practicable, and preferably within seven days of reaching that proposed agreement, in accordance with its duties under Section 6.4 of the Act.

Application requirements

7.293 A request for a settlement approval is made by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

7.294 In addition to the standard DRS application requirements, an application for a settlement approval lodged by the insurer must also include details of:

(a) the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated

(b) the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated

(c) the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made

(d) the evidence, documents and materials relevant to an assessment of the damages settlement.

7.295 DRS may decline to accept the settlement approval application if it does not comply with the above clause.

Settlement approval

Managing the settlement approval

7.296 The application for a settlement approval will be managed in accordance with the provisions set out in the ‘Managing applications made to DRS’ section of this Part of the Motor Accident Guidelines.

7.297 In addition to the standard application management provisions, DRS may also arrange for the settlement approval application to be referred to a claims assessor for determination, under Division 6.4, section 6.23 of the Act.

7.298 The settlement approval will be considered and determined by a claims assessor who has been appointed by the Authority, under Division 7.2, section 7.4 of the Act.

7.299 DRS will advise the parties of the claims assessor who has been allocated to determine a particular settlement approval.

The settlement approval process

7.300 The settlement approval 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 damages settlement, which may include undertaking the assessment on the papers, using teleconferences, videoconferences or face-to-face meetings as appropriate.

7.301 The claims assessor may determine the settlement approval procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as they think fit.

7.302 The claims assessor may request additional information from the parties for the purpose of considering the settlement approval.

7.303 The claims assessor is not to approve the settlement of the claim unless satisfied that the settlement complies with any applicable requirements of or made under Division 6.4, section 6.23(3) of the Act, or this Part of the Motor Accident Guidelines.

7.304 The proposed settlement must comply with the following requirements of this Part of the Motor Accident Guidelines, made under section 6.23(3) of the Act:

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

(b) appropriateness – 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 a claims assessor, 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) understanding – the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

7.305 The claims assessor may receive information from the claimant in confidence during the settlement approval process. This information may include the reason given by the claimant for agreeing to the proposed settlement. The claims assessor is not required to disclose this information to the insurer, except where the information suggests that the claimant may have made a fraudulent claim or may have otherwise contravened the Act or the Motor Accident Guidelines.

The settlement approval decision

7.306 The claims assessor may decide to:

(a) reject the proposed settlement as submitted in the application, with or without recommendations to the parties about the further conduct of the claim,

(b) approve the proposed settlement as submitted in the application

(c) approve an amended proposed settlement agreed by the parties during the course of the consideration of the proposed settlement approval.

7.307 The claims assessor must issue the parties with a certificate as to the determination of the settlement approval application, attaching a brief statement of reasons for the determination.

7.308 The settlement approval application will be determined as soon as practicable by the issuing of the claims assessor’s certificate, and preferably within 14 days of the application being made; however, a determination is not invalid if it is made after that period expires.

The effect of the settlement approval decision

7.309 A settlement approval decision is effectively binding on the parties under Division 6.4, section 6.23 of the Act.

7.310 The insurer should apply and give effect to the settlement approval decision as quickly as is practicable, in accordance with any agreed terms of the settlement, and the insurer’s responsibilities under the principles in ‘Part 4 of the Motor Accident Guidelines: Claims’.

7.311 On receiving the settlement approval decision, the insurer must advise the claimant about the effect of the decision within 7 days, providing the claimant with details of:

(a) how and when the insurer will give effect to the settlement approval decision

(b) the impact of the settlement approval decision on the claimant and their claim.

Miscellaneous claims assessment

Miscellaneous claims assessment matters

7.312 Schedule 2, clause 3 of the Act declares that there are a number of miscellaneous claims assessment matters that may be the subject of an application for a miscellaneous claims assessment by DRS.

7.313 A dispute about a decision of an insurer may not be referred for a miscellaneous claims assessment unless either:

(a) the decision has been the subject of an internal review by the insurer

(b) this Part of the Motor Accident Guidelines provides that an internal review is not required for the decision about the miscellaneous claims assessment matter to which the insurer’s decision relates

(c) the insurer has failed to complete an internal review and notify the claimant of the internal review decision within the required timeframe

(d) the insurer has declined to conduct an internal review.

7.314 A miscellaneous claims assessment may be made without an internal review, under section 7.41(2)(a) and 7.41(3) of the Act, this clause of the Guidelines and Part 5, Division 1, clause 11 of the Regulation, 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.

Requesting a miscellaneous claims assessment

7.315 This Part of the Motor Accident Guidelines may make provisions with respect to any aspect of the procedures to be followed under Division 7.6, section 7.39 of the Act.

Time for requesting a miscellaneous claims assessment

7.316 The application for a miscellaneous claims assessment may be made to DRS at any time by any party to the dispute.

Application requirements

7.317 A referral for a miscellaneous claims assessment is made by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

7.318 In addition to the standard DRS application requirements, an application for a miscellaneous claims assessment must also include:

(a) the decision that is referred for a miscellaneous claims assessment

(b) the alternative decision sought in the miscellaneous claims assessment

(c) the reasons the decision should be changed

(d) any regulated costs sought (if applicable).

7.319 DRS may decline to conduct a miscellaneous claims assessment if the application does not comply with the above clause.

Replying to a miscellaneous claims assessment application

Time for replying to a miscellaneous claims assessment application

7.320 A party who receives an application for a miscellaneous claims assessment lodged with DRS by another party will be given the opportunity to respond.

7.321 The responding party may lodge a reply to an application for a miscellaneous claims assessment within a period of time after receiving the application for a miscellaneous claims assessment as listed in Table 7.4 for the various types of medical assessment matters.

Table 7.4: Miscellaneous claims assessment notification period

Miscellaneous claims assessment matters

Reply period

Statutory benefits payments matters (Schedule 2, clause 3(b), (f) and (k))

7 days

Procedural claims matters (Schedule 2, clause 3(h), (i), (j), (l), and (m))

14 days

Fault and contributory negligence matters (Schedule 2, clause 3(a), (a1), (c), (d), (e) and (g))

21 days

7.322 If the respondent lodges a reply later than the period allowed above, DRS may decline to consider the reply.

7.323 DRS may also proceed in the absence of a reply.

Reply requirements

7.324 A party may reply to an application for a miscellaneous claims assessment by making a reply to DRS in accordance with the standard DRS reply requirements set out in the ‘Lodging a reply with DRS’ section of this Part of the Motor Accident Guidelines.

7.325 In addition to the standard DRS reply requirements, a reply to an application for a miscellaneous claims assessment must also include the following information:

(a) the response to the alternative decision sought in the application for miscellaneous claims assessment

(b) the response to the reasons the other party believes the decision should be changed

(c) the response to any regulated costs sought.

7.326 DRS may decline to consider a reply to an application for a miscellaneous claims assessment if it does not comply with the above clause.

The miscellaneous claims assessment

Managing the miscellaneous claims assessment

7.327 The application for a miscellaneous claims assessment will be managed in accordance with the provisions set out in the ‘Managing applications made to DRS’ section of this Part of the Motor Accident Guidelines.

7.328 In addition to those standard application management provisions, DRS may also arrange for the miscellaneous claims assessment application to be referred to a claims assessor, under section 7.32(2) of the Act.

7.329 The provisions of Division 7.6, Subdivision 2 ‘Assessment of claims for damages’, also apply to the assessment of a miscellaneous claims assessment under Subdivision 3 ‘Miscellaneous claims assessments’ due to the operation of section 7.42(2) of the Act.

The claims assessor

7.330 The miscellaneous claims assessment will be conducted by a claims assessor who has been appointed by the Authority, under Division 7.2, section 7.4 of the Act.

7.331 DRS will advise the parties of the claims assessor who has been allocated to conduct a particular miscellaneous claims assessment.

The miscellaneous claims assessment process

7.332 The miscellaneous claims assessment 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 miscellaneous claims assessment, which may include undertaking the assessment on the papers, using teleconferences, videoconferences or face-to-face meetings as appropriate.

7.333 The claims assessor may determine the miscellaneous claims assessment procedure, is not bound by the rules of evidence and may inquire into any matter relevant to the issues in dispute in such manner as the they think fit.

7.334 The claims assessor conducting the miscellaneous claims assessment may exercise the same claims assessor powers and apply the same procedures as for a claims assessments, subject to the modifications in Part 5, Division 5 of the Regulation.

The miscellaneous claims assessment decision

7.335 The miscellaneous claims assessment will be determined by the claims assessor within 21 days of receipt of all relevant information, or as soon as practicable, thereafter.

7.336 The claims assessor must issue the parties with a certificate as to the miscellaneous claims assessment, attaching a brief statement of reasons for the assessment, under section 7.36(5) of the Act.

7.337 An obvious error in the claims assessor’s certificate, or statement of reasons attached to the certificate, may be corrected at the request of either party, or as a result of the claims assessor’s identification of an obvious error. Any such application is to be made to DRS in writing, setting out details of the obvious error and the terms of the suggested correction.

7.338 The party making the application is to send a copy of the application to the other party.

7.339 If the PCA is satisfied that the certificate or a statement of reasons attached to the certificate contains an obvious error, the PCA may issue, or approve of the claims assessor issuing, a replacement certificate or statement of reasons to correct the error, under section 7.36(6) of the Act.

The effect of the miscellaneous claims assessment decision

7.340 The insurer should apply and give effect to the miscellaneous claims assessment decision as quickly as practicable, in accordance with its duties under section 6.4 of the Act.

7.341 On receiving the miscellaneous claims assessment decision, the insurer must advise the claimant about the effect of the decision within 7 days, providing the claimant with details of:

(a) how and when the insurer will give effect to the miscellaneous claims assessment decision

(b) the impact of the miscellaneous claims assessment decision on the claimant and their claim.

Legal costs for miscellaneous assessment matters

7.342 Schedule 1, clause 3 of the Regulation make provision for the maximum costs for legal services provided to a claimant in connection with matters relating to the assessment of a miscellaneous assessment matter.

7.343 Where costs for legal services are payable by the insurer, the insurer must pay the invoice within 20 days of its receipt.

Damages claims assessment

7.344 A claimant, insurer or both may refer a claim for damages for a claims assessment, under section 7.32(1) of the Act.

Claims that are exempt from assessment

7.345 The Regulation, under Part 5, Division 4, clause 14, lists those kinds of claims that are exempt from assessment.

7.346 A claim is also exempt from assessment if a claims assessor has made a preliminary assessment of the claim and has determined, with the approval of the PCA, that the claim is not suitable for assessment, under section 7.34(1)(b) of the Act.

7.347 In determining whether a claim is not suitable for a claims assessment, a claims assessor and the PCA will have regard to the objects of the Act, the objects of DRS and all of the circumstances of the claim at the time of considering the claim. This may include, but is not limited to whether:

(a) the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim

(b) the claim involves issues of liability, including issues of contributory negligence, fault and/or causation\

(c) a claimant or a witness, considered by the claims assessor to be a material witness, resides outside New South Wales

(d) a claimant or insurer seeks to proceed against one or more non-CTP parties

(e) the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident, giving rise to the claim.

Requesting a damages claims assessment

Time for requesting a damages claims assessment

7.348 The parties to a claim must use their best endeavours to settle the claim before referring it for damages claims assessment, under section 7.32(3) of the Act.

7.349 An application for a claims assessment, including for exemption from assessment, must be made within three years of the date of the accident, under section 7.33 of the Act.

7.350 If an application for a claims assessment, including for exemption from assessment, is made more than three years after the date of the motor accident, the applicant must provide a full and satisfactory explanation for the delay for a claims assessor. The claims assessor will determine whether to grant leave for the claim to be referred for assessment, including for exemption from assessment, under section 7.33 of the Act.

Application requirements

7.351 This Part of the Motor Accident Guidelines makes provisions relating to the procedures referring disputes for a damages claims assessment, including for exemption from a damages claims assessment, under section 7.39 of the Act.

7.352 A claim for damages may be referred for a claims assessment, including for exemption from damages claims assessment, by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

7.353 In addition to the standard DRS application requirements, an application for a damages claims assessment, including for exemption from assessment, must also include details of:

(a) the best endeavours that the parties have used to attempt to settle the claim before referring it for assessment, including for exemption from assessment

(b) the issues in dispute between the parties.

7.354 DRS may decline to conduct a claims assessment if the application does not comply with the above clause.

Replying to a damages claims assessment application

Time for replying to a damages claims assessment application

7.355 A party who receives an application for a claims assessment, including for exemption from assessment, lodged with DRS by another party will be given the opportunity to respond.

7.356 The responding party may lodge a reply to an application:

(a) for exemption from damages claims assessment, within seven days of receiving the application

(b) for a damages claims assessment, within 21 days of receiving the application.

7.357 If the respondent lodges a reply later than the period allowed above, DRS may decline to consider the reply.

7.358 DRS may also proceed to make a decision in the absence of a reply.

Reply requirements

7.359 A party may reply to an application for a damages claims assessment, including for exemption from assessment, by making a reply to DRS in accordance with the standard DRS reply requirements set out in the ‘Lodging a reply with DRS’ section of this Part of the Motor Accident Guidelines.

7.360 In addition to the standard DRS reply requirements, a reply to an application for a claims assessment, must also include:

(a) the response of the party, including details of the best endeavours that the parties have used to attempt to settle the claim before referring it for assessment, identified in the claims assessment application

(b) the response of the party to the issues in dispute between the parties identified in the claims assessment application.

7.361 DRS may proceed to make a decision in the absence of a reply to an application for a claims assessment, including for exemption from assessment, if the reply does not comply with the above clause.

The damages claims assessment

Managing the damages claims assessment

7.362 The application for a claims assessment, including for exemption from assessment, will be managed in accordance with the provisions set out in the ‘Managing applications made to DRS’ section of this Part of the Motor Accident Guidelines.

7.363 In addition to those standard application management provisions, DRS may also:

(a) make exemption assessment arrangements – arrange for an exemption application under section 7.34(1)(a) of the Act, to be referred to the PCA, under section 7.32(2) of the Act

(b) make claims assessment arrangements – arrange for a damages claims assessment application, including any exemption application under section 7.34(1)(b) of the Act for matters claimed to be not suitable for assessment, to be referred to a claims assessor, under section 7.32(2) of the Act.

7.364 If a claim is exempt from assessment under section 7.34(1)(a) of the Act for matters specified in the Regulation as exempt, the PCA must, as soon as practicable, and preferably within seven days of the due date for the reply to the application, arrange for a certificate to that effect to be issued to the insurer and the claimant under section 7.34(2) of the Act.

7.365 If a claims assessor has determined (with the approval of the PCA) that a claim is not suitable for assessment under section 7.34(1)(b) of the Act, the PCA must, as soon as practicable, and preferably within seven days of the claims assessor’s determination, arrange for a certificate to that effect to be issued to the insurer and the claimant under section 7.34(2) of the Act.

The claims assessor

7.366 The claims assessment will be conducted by a claims assessor who has been appointed by the Authority, under section 7.4 of the Act, and who may assess that particular class of claim under section 7.35 of the Act.

7.367 DRS will advise the parties of the claims assessor who has been allocated to conduct a particular claims assessment.

The damages claims assessment process

7.368 The claims assessment 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 claims assessment, which may include undertaking the assessment on the papers, using teleconferences, videoconferences or face‑to-face meetings, as appropriate.

7.369 The claims assessor may determine the claims assessment procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as they think fit.

7.370 The claims assessor must act with as little formality as the circumstances of the claim permit and according to equity, good conscience and the substantial merits of the matter, without regard to technicalities and legal forms.

7.371 The claims assessor must ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined.

7.372 During the course of an assessment, the claims assessor will not inquire about the amount of any offers made by either party.

7.373 A claims assessor will not be disqualified from assessing a matter if they become aware in any manner of the amount of any offer. If the claims assessor becomes aware of any offer, they will disregard that information for the purpose of assessing the claim.

The damages claims assessment decision

7.374 The claim assessor will determine the claims assessment as soon as practicable and preferably within 21 days of the assessment, under section 7.36(4) of the Act; however, a determination is not invalid if it is made after that period expires.

7.375 The claims assessor must issue the parties with a certificate as to the claims assessment, attaching a brief statement of reasons for the assessment, under section 7.45(1) of the Act.

7.376 An obvious error in the claims assessor’s certificate, or statement of reasons attached to the certificate, may be corrected at the request of either party, or as a result of the claims assessor’s identification of an obvious error. Any such application is to be made to DRS in writing, setting out details of the obvious error and the terms of the suggested correction.

7.377 The party making the application is to send a copy of the application to the other party.

7.378 If the PCA is satisfied that the certificate, or a statement of reasons attached to the certificate, contains an obvious error, the PCA may issue, or approve of the claims assessor issuing, a replacement certificate or statement of reasons to correct the error, under section 7.36(6) of the Act.

7.379 A request by a party to have an obvious error corrected must be made within 21 days after the certificate of the claims assessment is issued.

The effect of the damages claims assessment decision

7.380 The insurer should apply and effect to the claims assessment decision as quickly as is practicable, in accordance with its responsibilities under the principles in ‘Part 4 of the Motor Accident Guidelines: Claims’.

7.381 The Regulation prescribes the time for payment of assessed damages  at Part 5, Division 4, clause 16(1).

7.382 On receiving the claims assessment decision, the insurer must advise the claimant about the effect of the decision within 7 days, providing the claimant with details of:

(a) how and when the insurer will give effect to the claims assessment decision

(b) the impact of the claims assessment decision on the claimant and their claim.

Legal costs in damages claims assessment matters

7.383 Schedule 1 clause 2(5) and Table E of the Regulation makes provision for the maximum costs for legal services to a claimant in connection with a claims assessment matter.

7.384 Where costs for legal services are payable by the insurer, the insurer must pay the invoice within 20 days of its receipt.

Further assessments of damages claims

7.385 This Part of the Motor Accident Guidelines makes provisions relating to the procedures for the referral of disputes for assessment, under section 7.39 of the Act.

7.386 A claim for damages may be referred for a further claims assessment by making an application to DRS in accordance with the standard DRS application requirements set out in the ‘Lodging an application with DRS’ section of this Part of the Motor Accident Guidelines.

7.387 The further claims assessment will be dealt with under the same guideline provisions that apply to claims assessments, and the ‘Assessment of claims for damages’ section also applies to applications for further claims assessment.