Slater and Gordon had an information session on 25 February 2014 after discussion s with the TAC. The relevant sections of the act for us are the following.
13 Amendment of section 46A (accident-related impairment)
After section 46A(1E) of the Principal Act insert—”(1F) When determining the degree of impairment under this section, section 47(7) or section 47(7A), the Commission must—
(a) not include impairments resulting from injuries or causes that are unrelated to the transport accident; and
(b) in the case of a person who has an injury that existed before the transport accident that is aggravated by an injury that was the result of a transport accident—
(i) in the case of a spinal injury, use the apportionment methodology set out in Chapter 3.3f of the A.M.A Guides;
(ii) in any other case, use the subtraction methodology set out in Chapter 2 of the A.M.A Guides.”.
The Commission is not liable to pay as compensation the reasonable costs of medical services that are the provision of a document obtained for medico-legal purposes, or related to medico-legal purposes for examinations made after 1 July 2014 unless the document—
(a) is requested jointly by the Commission and the person who is injured;
(b) is provided jointly to the Commission and the person who is injured;
(c) is provided by a registered health practitioner within the meaning of the Health Practitioner Regulation National Law.
document includes but is not limited to a medical report.
The Minister Second Reading Speech Commentary on Amendment 21
Currently, the TAC funds the reasonable cost of medical reports obtained by or on behalf of a client, in relation to injuries sustained in a transport accident.
On average, clients attend 8 medical examinations over the course of their claim, of which, only 2 are commissioned by the TAC. The remaining examinations are commissioned by the client’s legal representative in support of legal claims.
To address the need for a client to attend multiple examinations and to minimise the occurrence of a client attending duplicate examinations in relation to the same specialisation, this bill will enable the TAC to reimburse medico-legal report expenses if the medico-legal report is requested jointly by the TAC and the person who is injured.
It is intended that this provision come into operation on 1 July 2014 to inform and assist medical practitioners of this new policy change.
ISSUES: Potential for TAC to veto some IMEs. We have been assured that current arrangements will continue but the future is uncertain. Solicitors requiring other reports will have to pay for the reports themselves and will only be re-imbursed if the case is successful.
Clause 26 Amendments -Common law damages claims for mental injury due to injury or death
A person who is injured as a result of a transport accident may not recover damages from a person indemnified by the Commission if—
(a) the injury is nervous shock or other mental injury; and
(b) the person was not directly involved in the accident and did not witness the transport accident; and
(c) the mental injury or nervous shock was suffered as a result of the injury or death of another person who was directly involved in the transport accident; and
(d) the transport accident was caused—
(i) in the course of the other person referred to in paragraph
(c) committing, or intending to commit suicide; or
(ii) solely or predominantly by the negligence of the other person referred to in paragraph (c).”
The bill will clarify that the injury or death of a person through suicide, an intention to commit suicide or predominately through their own negligence does not give rise to an action by another person for damages in respect of mental injury (including nervous shock) where the other person was not directly involved in or witnessed the transport accident.
ISSUES: The TAC has assured us this does not exclude first responders and will be implemented flexibly. The usual benefits will be paid, this only refers to common law claims.
the definition of serious injury, a person has a severe long-term mental or severe long-term behavioural disturbance or disorder if that person, for a continuous period of at least 3 years—
(a) has a recognised mental illness or disorder (other than abnormal illness behaviour) as a result of a transport accident; and
(b) displays symptoms and consequent disability that have not responded, or have substantially failed to respond, to known effective clinical treatments provided by a registered mental health professional who is registered under the Health Practitioner Regulation National Law to practice (other than as a student); and
(c) has severely impaired function with symptoms causing clinically significant distress and severe impairment in relationships and social and vocational functioning.”
As a community we know much more about mental illness than we did when the TAC scheme was established in 1986 . The government understands that recovering from a transport accident can be a very emotional and challenging time.
This bill introduces clauses that set out clinical criteria of what constitutes a severe long-term mental or severe long-term behavioural disturbance or disorder for the purposes of serious injury. This provision has been developed in consultation with the Department of Health, including the chief psychiatrist. The clinical criteria will encourage people who were directly exposed to a transport accident and who have suffered a recognised mental illness or disorder to seek treatment by a registered mental health professional, to improve their chances of getting their life back on track as soon as possible.
ISSUES: We have been assured that the retired, those out of the workforce and others will not be disadvantaged. It has been recognized the no-one is a ‘qualified mental health practitioner’ but the explanatory notes from the TAC state that all but GPs and social workers will be included as treaters. This begs the question of the status of GPs with mental health specialist qualifications. We have also been advised that it is recognized that symptoms will fluctuate and this will not disadvantage claimants. We will see!