Part D: Dispute resolution
Part D: Dispute resolution 1
1. Preliminary (Division 7.1) 3
Explanatory note 3
Introduction and interpretation 4
Definitions 4
Obligations and duties 6
2. Insurer internal review (Division 7.3) 9
Guideline powers 9
Internal review matters 9
Requesting an internal review 14
The internal review 18
3. Dispute Resolution Service (Division 7.2) 20
Establishment & Jurisdiction 20
Objects 21
Lodging applications and replies 23
Documentation and other supporting material 28
DRS electronic dispute management (EDM) system 31
Managing applications made to DRS 32
Publication of Decisions 33
4. Merit review (Division 7.4) 34
Guideline Powers 34
Merit review matters 34
Applying for a merit review 35
Replying to a merit review application 37
The Merit Review 40
Review of a single merit review by a review panel 42
5. Medical assessment (Division 7.5) 46
Guideline Powers 46
Medical assessment matters 46
Requesting a medical assessment 48
Replying to a medical assessment application 49
The medical assessment 52
Permanent Impairment 54
Treatment and care 55
Further medical assessment 55
Medical assessor’s certificates and reasons 57
Review of a single medical assessment by a review panel 58
Costs of attending medical assessments 63
6. Claims assessment (Division 7.6) 63
Guideline Powers 63
Damages Settlement Approval 63
Miscellaneous claims assessment 68
Assessment of claims for damages 75
Further assessments of claims for damages 86
Index 87
Glossary 88
Division 7.3 (Internal Review), Division 7.4 (Merit Review), Division 7.5 (Medical assessment) and Division 7.6 (Claims assessment) under Part 7 Motor Accident Injuries Act 2017.
Dispute resolution
Guidelines for and with respect to internal review by insurers and dispute resolution by the State Insurance Regulatory Authority’s Dispute Resolution Service (DRS) including determination of merit review matters, medical assessment matters, miscellaneous claims assessment matters, and claims assessment matters.
1. Preliminary (Division 7.1)
Explanatory note
1.1 This Part D of the motor accident guidelines (the dispute resolution guidelines) are made under those sections of the Motor Accidents Injuries Act 2017 (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).
1.2 DRS has been established by the authority under Division 7.2, section 7.2 of the Act, as a dispute resolution service which is independent of insurers and claimants, to resolve disputes as they arise during the course of a claim.
1.3 DRS is delivered by the Dispute Resolution Services Division, a separate Division of SIRA, which is independent from the Motor Accident Insurance Regulation (MAIR) and Workers Home Building Compensation Regulation (WHBCR) Divisions of SIRA.
1.4 These dispute resolution guidelines are to instruct, guide, support and assist claimants and their representatives, insurers and their representatives, members of the legal and medical professions, officers of the DRS, dispute resolution officers, proper officers, DRS merit reviewers, DRS medical assessors, DRS claims assessors and the DRS principal claims assessor to resolve disputes arising in MAI scheme claims in accordance with the objects of the Act and the objects of DRS.
1.5 These dispute resolution guidelines apply to all MAI scheme claims arising from accidents occurring on or after 1 December 2017.
1.6 These dispute resolution guidelines have the force of a statutory rule and should be read in conjunction with the Act and regulations.
1.7 In support of these dispute resolution guidelines, the authority has published on its website at www.sira.nsw.gov.au a suite of supporting information and explanatory materials to assist and inform claimants, insurers and their representatives on the operations of these dispute resolution guidelines and dispute resolution in the MAI scheme.
1.8 Questions about these dispute resolution guidelines should be directed to the Executive Director, Dispute Resolution Services.
Introduction and interpretation
What is the power, status and purpose of these dispute resolution guidelines?
1.9 The power to make these dispute resolution 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).
1.10 These dispute resolution guidelines have the force of a statutory rule and they are to be read in conjunction with the Act and the regulations.
1.11 The purpose of these dispute resolution guidelines is to:
1.11.1 give effect to legislative provisions with respect to dispute resolution in the MAI scheme, including internal reviews by insurers and the DRS of the authority
1.11.2 instruct, guide, support and assist claimants and their representatives, insurers and their representatives, members of the legal and medical professions, officers of DRS, merit reviewers, medical assessors and claims assessors to resolve disputes arising in claims, in accordance with the objects of the Act and the objects of DRS, in a way that is timely, fair, cost effective, accessible, transparent and professional.
Definitions
What definitions apply in these dispute resolution guidelines?
1.12 The definitions of terms in this clause apply to these dispute resolution guidelines to the extent that these terms may not otherwise defined in the Act. The terms used in these dispute resolution guidelines have the following meanings:
1.12.1 Act – Motor Accident Injuries Act 2017 as amended from time to time.
1.12.2 Applicant – The party that initiates the referral of a claim or dispute in connection with a claim.
1.12.3 Application – The way a party refers a merit review matter, medical assessment matter, miscellaneous claims assessment matter and claims assessment matter.
1.12.4 Authority –The State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015.
1.12.5 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.
1.12.6 claims assessor – A person appointed by the authority under Part 7 Division 7.2 as a DRS claims assessor.
1.12.7 Claims assessment matter – A matter declared by Schedule 2, clause 4 of the Act to be a claims assessment matter.
1.12.8 Claims Guidelines – Part C Claims of this document, the motor accident guidelines, which are made under section 6.1 of the Act, and which make provision with respect to the manner in which insurers and those acting you on their behalf are to deal with claims.
1.12.9 Decision maker – A, DRS merit reviewer, DRS claims assessor, DRS principal claims assessor, DRS proper officer, or DRS medical assessor.
1.12.10 Dispute resolution guidelines – This document, being Part D Dispute Resolution of the motor accident guidelines.
1.12.11 DRO – dispute resolution officer – A Dispute Resolution Service staff member.
1.12.12 DRS – The Dispute Resolution Service of the authority.
1.12.13 Internal review – A review of a decision by the insurer under Division 7.3 (Internal review of insurer’s decisions).
1.12.14 Internal reviewer – An insurer’s internal reviewer.
1.12.15 MAI scheme – The NSW Motor Accident Injuries scheme, created in the Motor Accident Injuries Act 2017.
1.12.16 Matters – A merit review matter, medical assessment matter, miscellaneous claims assessment matter or a claims assessment matter.
1.12.17 Medical assessment matter – A matter declared by Schedule 2, clause 2 of the Act to be a medical assessment matter.
1.12.18 Medical assessor – A person appointed by the authority under Part 7, Division 7.2 as a DRS medical assessor.
1.12.19 Medical review panel – is comprised of at least two medical assessors who have been appointed by the authority under section 7.4 of the Act for the purposes of conducting a review of a single medical assessment under section 7.26 of the Act.
1.12.20 Merit review matter – A matter declared by Schedule 2, clause 1 of the Act to be a merit review matter.
1.12.21 Merit review panel – is comprised of at least two merit reviewers who have been appointed by the authority under section 7.4 of the Act for the purposes of conducting a review of a single merit review under section 7.15 of the Act.
1.12.22 Merit reviewer – A person appointed by the authority under Part 7 Division 7.2 as a DRS merit reviewer.
1.12.23 Miscellaneous claims assessment matter – A matter declared Schedule 2, clause 3 of the Act to be a miscellaneous claims assessment matter.
1.12.24 Officer of DRS – A Dispute Resolution Service staff member.
1.12.25 PCA – The principal claims assessor of DRS appointed under Schedule 3 of the Act.
1.12.26 Person under a legal incapacity – includes:
(a) a child under the age of 18 years, and
(b) an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007 and
(c) a person under guardianship within the meaning of the Guardianship Act 1987 and
(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009 and
(e) an incommunicate person who has such a physical or mental disability that they are unable to receive communications, or express their will, with respect to their property or affairs.
1.12.27 Proceedings – Any conference or other proceeding held with or before a claims assessor, including any such proceedings at which the parties (or some of them) participate by telephone, closed circuit television or other means.
1.12.28 Proper officer – A proper officer of DRS exercising delegations under the Act.
1.12.29 Regulation – The Motor Accident Injuries Regulation 2017.
1.12.30 Reply – The way a respondent replies to an application.
1.12.31 Respondent – A party who is given an opportunity to respond to an application.
How do the references apply in these dispute resolution guidelines?
1.13 Sections and Parts – A reference in these dispute resolution guidelines to a part X, division Y or section Z is a reference to a part, division or section of the Motor Accident Injuries Act 2017, as amended from time to time, unless otherwise specified.
1.14 Parties – A reference in these dispute resolution guidelines to a party includes multiples of parties, or multiple parties to any application, and includes a reference to any representative of that party unless otherwise specified.
1.15 Days – A reference in these dispute resolution guidelines to a number of days is a reference to a number of calendar days, unless otherwise specified.
Obligations and duties
What are the obligations of the authority?
1.16 The authority is under an obligation to:
1.16.1 establish the DRS, consisting of merit reviewers, medical assessors, claims assessors and staff of the authority, under section 7.2 of the Act
1.16.2 establish an advisory service to assist claimants in connection with their claims and dispute resolution procedures , under Part 7 of the Act, and
1.16.3 exercise the functions of the authority under Division 10.1 of the Act to issue motor accident guidelines, establish DRS, appoint decision makers, and provide an advisory service to assist claimants in connection with claims and with dispute resolution procedures under Part 7.
What are the obligations and duties of the insurer?
1.17 An insurer is obligated to:
1.17.1 further the objects of the Act and the objects of the DRS
1.17.2 comply with their duty to act with good faith under Part 6 Division 6.2 section 6.3 of the Act
1.17.3 comply with their duty to endeavour to resolve a claim as justly and expeditiously as possible under section 6.4 of the Act
1.17.4 act as a model litigant in compliance with the requirements of Part C Claims of these motor accident guidelines (the claims guidelines), while participating in any dispute resolution processes, including complying with any requests or directions made by decision makers.
1.17.5 attempt to identify and narrow any issues in dispute before any application is lodged with DRS and to continue to do so while any application is being considered by DRS, and
1.17.6 comply with the requirements of these dispute resolution guidelines.
What are the obligations and duties of the claimant?
1.18 A claimant is obligated to:
1.18.1 further the objects of the Act and the objects of the DRS
1.18.2 comply with their duty to act with good faith under Part 6 Division 6.2 section 6.3 of the Act
1.18.3 comply with their duty to endeavour to resolve a claim as justly and expeditiously as possible under section 6.4 of the Act
1.18.4 comply with their duty to take all reasonable steps to minimise their loss under section 6.5 of the Act
1.18.5 comply with any requests or directions made by decision makers
1.18.6 attempt to identify and narrow any issues in dispute before any application is lodged with DRS and to continue to do so while any application is being considered by DRS, and
1.18.7 comply with the requirements of these dispute resolution guidelines.
What are the obligations of a representative of a party?
1.19 A representative of a claimant or insurer, is under an obligation to:
1.19.1 act honestly and not mislead the parties, DRS or any decision maker
1.19.2 assist the party they are representing to further the objects of the Act and the objects of DRS
1.19.3 assist the party they are representing to meet their obligations and duties, and
1.19.4 ensure that they do not, by their conduct, cause the party they represent to fail to meet their obligations and duties.
What are the obligations of an advisor from the advisory service?
1.20 An advisor of a claimant from the advisory service, established by the authority under section 7.49 of the Act, is under an obligation to:
1.20.1 assist the claimant, and any representative of the claimant, to further the objects of the Act and the objects of DRS
1.20.2 assist the claimant, and any representative of the claimant, to meet their obligations and duties, and
1.20.3 ensure that they do not, by their conduct, cause the claimant, and any representative of the claimant, to fail to meet their obligations and duties.
What are the obligations of DRS?
1.21 Decision makers of DRS including DRS merit reviewers, DRS medical assessors, DRS claims assessors, the DRS PCA, and DRS proper officers, are under an obligation to:
1.21.1 assist the parties to resolve the issues in dispute referred to them