Inequities plague New South Wales motor accident injuries scheme

In 2022, the Act was amended following a statutory review with critical changes such as renaming “minor injury” to “threshold injury” and extending statutory benefits for loss of wages and medical treatment from 26 to 52 weeks.

A missed opportunity

While the rebranding of the terminology addressed the problematic nature of using the term “minor” to describe injuries that could be quite severe, the definition remained the same, which was considered a missed opportunity to overhaul the definition and left room for inequity to persist.

Concannon says that a significant inequity is the exclusion of people with “threshold” injuries, such as soft tissue injuries and disc injuries without radiculopathy, from accessing benefits beyond 12 months and from bringing common law damages claims.

Radiculopathy, often referred to as a “pinched nerve,” occurs when a nerve root in the spine becomes compressed or irritated. It can happen anywhere along the spine, but it most commonly occurs in the lower back (lumbar radiculopathy) or neck (cervical radiculopathy).

“Under the old scheme, they would have been able to bring a common law damages claim,” Concannon says. This definition leaves a significant number of injured individuals, often manual workers with chronic injuries, without recourse after the initial 12-month period.

Misguided assumptions

The system also no longer allows claimants to recover the cost of gratuitous care provided by family and relatives, a change from the pre-2017 scheme. Concannon also highlighted issues with the dispute resolution process, which he says encourages insurers to dispute the reasonableness and necessity of treatment, leading to delays and inadequate care for claimants – An issue he says stems from the system’s assumption that insurers will act benevolently in their dealings with claimants.

“The system seems to assume that you’ve got a benevolent insurer dealing with claimants directly in a reasonable way. It’s just not the case,” Concannon said.

“In my experience…they’re just living in cloud cuckoo land if they think that’s going to happen because we’re dealing with insurers who are looking after their own profits.”

He explains that this disconnect between the system’s expectations and insurers’ actual behaviour further exacerbates the challenges faced by claimants, who often find themselves at odds with insurers more interested in protecting their bottom line than ensuring fair and timely access to benefits and compensation.

Concannon explains that the only way to challenge an insurer’s decision to reject a claimant’s treatment or care is to seek an internal review with the insurer, which is mandatory. If the claimant is still unsatisfied, they must take the dispute to the Personal Injury Commission. This process often involves significant delays, with claimants waiting 10 to 12 months to have a medical assessment determine whether the disputed treatment is reasonable and necessary.

“By the time they get that, even if they win that argument by getting the doctor or the medical provider to endorse that treatment regime, you’re 10 to 12 months down the track, by which time the need for that treatment may have evaporated,” Concannon said.

This complex and time-consuming dispute mechanism, combined with the lack of legal representation available to claimants, creates significant barriers to accessing the care and benefits they are entitled to under the system.

Lack of access to legal representation

Concannon stressed the importance for claimants to have early access to legal representation. The current system relies on an organisation called CTP Assist, which is part of the state’s insurance regulator, SIRA. However, Concannon explains that CTP Assist only provides procedural guidance to claimants rather than actual legal advice.

“They [CTP Assist] tell you what the process is, but they can’t tell you which way to go,” Concannon said.

Claimants, many of whom are navigating a complex legislative scheme for the first time, are left without the benefit of legal counsel to help them understand their rights and options. Concannon argues that the assumption that claimants can effectively manage the system on their own, with only the limited support of CTP Assist, needs to be revised and contributes to the overall inequities in the motor accident injuries scheme.

He also points out that for those seeking legal advice, their entitlements are capped at around $1,800, making it unviable for lawyers to provide meaningful advice and assistance to claimants navigating the complex system.

Concannon also acknowledged the significant problems of capped medico-legal report fees and the limited choice of doctors available to claimants. He explains that SIRA capping the costs for these reports at under $2,000 makes it challenging for claimants to obtain the necessary medical evidence to support their cases.

“It’s very difficult now in a number of areas of law, to be able to get medical evidence for your case, because SIRA’s capped these reports for these at very low levels,” Concannon said.

Additionally, he says claimants are required to choose from a list of SIRA-authorised health practitioners, further limiting their ability to select doctors who can provide comprehensive and impartial assessments. This combination of capped fees and restricted choice creates significant barriers for claimants seeking to build a solid medical case, undermining their ability to access the full range of benefits and compensation available under the system.

The future of the motor accidents injury system

The issues Concannon raises underscore the need for a comprehensive review of the motor accident injuries system in New South Wales to ensure fair and equitable access to compensation and support for those injured in motor vehicle accidents.

Concannon is hopeful that future amendments to the system could address these issues but acknowledged that progress has been slow, with reviews and recommendations made to Parliament remaining unresolved for several years and described it as “a long waiting game”.

“I think the government, rightly or wrongly, whenever they see an issue relating to legal costing, it doesn’t really require any urgent attention. It’s lawyers looking after themselves.

“The reality is that failure to deal with inadequacies of legal costs really leads to inadequacies of legal representation and people not getting a fair go,” Concannon said.

“And that’s what’s happening within the scheme at the moment, certainly within the statutory benefits scheme.”