Part 4 of the Motor Accident Guidelines: Claims

Student pre-accident weekly earnings

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

(a) the course of study being undertaken

(b) pre-accident academic results

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

(d) previous work experience

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

(f) the individual circumstances of the claimant

(g) any other relevant circumstances.

Post-accident earning capacity (after 78 weeks)

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

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

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

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

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

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

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

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

(h) any other relevant circumstances.

Non-compliance with providing evidence of fitness for work

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

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

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

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

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

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

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

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

Notice before benefits discontinued or reduced

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

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

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

(b) contact details of the Authority.

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

Claimant’s responsibilities for ongoing weekly payments

Evidence of fitness for work

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

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

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

(a) a medical practitioner, or

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

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

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

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

Change in circumstances

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

Residing outside of Australia

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

Minimising loss

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

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

(a) is aware of their duty to minimise loss

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

(c) understands the consequences of failing to comply

(d) has had a reasonable opportunity to comply

(e) has the Authority’s contact details.

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

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

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

Treatment, rehabilitation, care and vocational support

Treatment before a claim is made

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

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

Recovery plans

Recovery approach

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

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

(a) measure and demonstrate the effectiveness of the treatment

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

(c) empower the injured person to manage their recovery

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

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

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

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

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

Screen and assess risk of poor recovery

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

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

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

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

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

Recovery plan

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

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

(b) where the claimant is performing their usual activities

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

(d) where the claim is denied

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

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

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

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

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

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

(d) any treating clinicians or therapists as appropriate.

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

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

4.91 The recovery plan must be:

(a) developed in consultation with the claimant

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

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

(d) followed up with the claimant regularly.

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

Development of a recovery plan

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

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

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

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

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

(e) any Certificate of Fitness provided by the claimant

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

(g) the age of the claimant

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

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

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

Minimum requirements in recovery plans

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

(a) name of claimant

(b) claim number

(c) date of injury

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

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

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

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

(h) obligations of the claimant

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

(j) contact details of the insurer representative

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

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

Obligations of the claimant

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

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

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

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

Treatment and care decisions

Limits on treatment and care expenses

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

Facilitating referrals

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

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

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

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

Determining requests

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

(a) if approved:

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

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

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

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

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

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

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

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

Claims involving a death

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

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

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

4.111 (omitted).

Verification of expenses

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

(a) the claimant’s first and last name

(b) the claim number allocated by the insurer

(c) payee details

(d) the Medicare provider number, if relevant

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

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

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

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

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

(j) the service duration, where applicable.

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

Making a damages claim

Time for making a damages claim

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

Request to concede degree of permanent impairment

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

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

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

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

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

(a) the insurer’s reasons for its decision

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

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

Late damages claims – specific requirements

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

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

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

Notice of a damages claim

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

4.123 The notice of claim must contain the following information:

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

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

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

Liability decisions in a damages claim

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

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

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

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

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

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

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

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

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

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

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

Claimant failure to provide relevant particulars – damages claim

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

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

Non-economic loss – specific requirements

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

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

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

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

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

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

Reasonable offers of settlement and finalising claims

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

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

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

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

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

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

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

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

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

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

Confirming payment of a settlement amount

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

(a) the total settlement amount

(b) to whom the payment has been made

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

(d) the date the payment was made

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

Nominal Defendant claims

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

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

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

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

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

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

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

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

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

Investigations

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

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

Factual Investigations

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

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

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

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

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

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

Surveillance

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

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

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

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

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

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

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

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

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

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

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

Medical examinations

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

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

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

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

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

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

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

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

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

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

Schedule 4.1 CTP Green Slip Claim Forms

Table 4.1: Application for personal injury benefits

Table 4.2: Online application for personal injury benefits

Table 4.3: Application for funeral expenses

Table 4.4: Application to compensate relatives

Table 4.5: Application for damages under common law