Motor Accident Injuries Act 2019

1 Name of Act This Act is the Motor Accident Injuries Act 2019.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘personal health information—see the Health Records (Privacy and Access) Act 1997, dictionary.’ means that the term ‘personal health information’ is defined in that dictionary and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Part 1.1

5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

6 Objects of Act The main objects of this Act are to— (a) ensure benefits are available to support all people injured in motor accidents on a no-fault basis, subject to some exclusions and limitations; and (b) encourage early and appropriate treatment and care of people injured in motor accidents to achieve optimum recovery and return to pre-accident levels of activity and work; and (c) support people injured in motor accidents to access defined (d) promote and encourage the early, quick, cost-effective and just resolution of disputes; and (e) continue and improve the system of motor accident injury insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in the ACT; and (f) keep the costs of motor accident injury insurance at an affordable level; and

(g) provide frameworks that allow competition in setting premiums for motor accident injury insurance policies; and (h) provide for the licensing and supervision of insurers providing motor accident injury insurance; and (i) establish and keep a register of motor accident claims to help the administration of the statutory insurance scheme and the detection of fraud; and (j) support and promote the prevention of motor accidents and the safe use of motor vehicles.

7 Application of Act (1) This Act applies to the death or injury of a person that results from a motor accident if the motor accident— (a) happened in the ACT on or after the day this Act commenced; and (b) at least 1 motor vehicle involved in the motor accident had MAI cover under this Act at the time of the motor accident. (2) For subsection (1) (b), a motor vehicle involved in a motor accident is taken to have had MAI cover under this Act at the time of the motor accident if— (a) an MAI policy was in force for the motor vehicle at that time; or (b) at that time, the motor vehicle was owned by— (c) a compulsory third-party insurance policy was in force for the motor vehicle under the law of a jurisdiction other than the ACT at that time; or

Preliminary Part 1.1 (d) there is a right of action against the nominal defendant under this Act in relation to the motor accident; or (e) there would be a right of action against the nominal defendant under this Act in relation to the motor accident if the cause of the motor accident was the fault of the responsible person for, or the driver of, the motor vehicle in the use or operation of the

8 Meaning of person injured in a motor accident person injured in a motor accident means an individual who sustains a personal injury as a result of a motor accident. Note Injured person means a person injured in a motor accident (see dict).

9 Meaning of personal injury personal injury means bodily injury and includes— (a) psychological or psychiatric injury; and (b) damage to spectacles, contact lenses, dentures, hearing aids, crutches, wheelchairs, artificial limbs and prosthetic devices; and (c) death. Examples—psychological or psychiatric injury mental or nervous shock

10 Meaning of motor accident motor accident means an incident that— (a) involves the use or operation of a motor vehicle; and (b) causes personal injury to an individual; and (c) happens when— (i) someone is driving the motor vehicle; or

Injury concepts Division 1.2.1 (ii) someone or something collides with the motor vehicle; or (iii) someone takes action to avoid colliding with the motor (iv) the motor vehicle runs out of control.

11 Meaning of use motor vehicle use, a motor vehicle, includes the following: (a) drive, park or stop the motor vehicle on a road or road related area; (b) maintain the motor vehicle; (c) if the motor vehicle is towing a trailer—use the trailer while attached to the vehicle; (d) if the motor vehicle is a tow truck towing or carrying an uninsured motor vehicle—use or operate the uninsured vehicle being towed or carried; (2) Also, if a trailer towed by a motor vehicle becomes detached from the vehicle and runs out of control, the use of the vehicle is taken to include the trailer while it is running out of control.

12 Meaning of permanent impairment permanent impairment means the loss of, loss of the use of, or damage or malfunction of, any of the following: (a) a part of the body; (b) a bodily system or function; (c) a part of a bodily system or function.

13 Meaning of whole person impairment (or WPI) whole person impairment (or WPI), of a person, means the degree of permanent impairment of the whole person resulting from personal injury sustained as a result of a motor accident, expressed as a whole number percentage.

14 Meaning of independent medical examiner (or IME) independent medical examiner (or IME) means a doctor who, under an arrangement with an authorised IME provider, conducts— (a) medical examinations for WPI assessments; and (b) SOI assessments.

15 Authorisation of IME providers (1) The MAI commission must authorise entities to be IME providers for this Act (authorised IME providers). (2) The MAI commission must not authorise an entity to be an IME provider unless satisfied that the entity— (a) has expertise in arranging— (i) medical examinations for WPI assessments; and (ii) SOI assessments; and (b) has entered into a deed of services with the MAI commission; and (c) otherwise meets the criteria set out in the MAI guidelines for authorising an entity to be an IME provider. (3) The MAI guidelines may make provision for the following: (a) criteria for authorising an entity to be an IME provider;

Insurance concepts Division 1.2.2 (b) operational requirements to be imposed on an authorised IME provider; (c) fees that may be charged by an authorised IME provider for provision of services for WPI assessments and SOI assessments.

Division 1.2.2 Insurance concepts

16 Meaning of nominal defendant (1) For this Act, ACTIA is the nominal defendant. Note ACTIA—see the dictionary. (2) Any action or proceeding by or against the nominal defendant must be taken in the name of the ‘nominal defendant’.

17 Meaning of average weekly earnings (or AWE) average weekly earnings (or AWE) means the series of average weekly earnings issued by the Australian statistician, prescribed by

18 Meaning of AWE indexed for amount AWE indexed, for an amount, means the amount as adjusted in line with any adjustment in the AWE— (a) after the commencement of the provision in which the amount appears; and (b) on a day (an indexation day) prescribed by regulation for the amount; and

(c) rounded up to the nearest— (i) for an amount referred to in section 96, section 97 or section 103—dollar; or (ii) in any other case—whole $10. (2) However, if an amount to be AWE indexed would, if adjusted in line with the adjustment (the negative adjustment) to the AWE, become smaller, the amount is not reduced in line with the negative (3) An amount that, in accordance with subsection (2), is not reduced may be increased in line with an adjustment in the AWE that would increase the amount only to the extent that the increase, or part of the increase, is not one that would cancel out the effect of the negative (4) Subsection (3) does not apply to a negative adjustment once the effect of the negative adjustment has been offset against an increase in line with an adjustment in the AWE.

19 Indexation of defined benefits and quality of life damages (1) The MAI commission must, on or before each indexation day for an amount that is AWE indexed, declare— (a) the AWE indexation factor for the amount; and (b) the amount as indexed; and (c) that the amount as indexed applies on the indexation day for the amount. (2) A declaration under subsection (1) is a notifiable instrument. AWE indexation factor, for an amount, means the factor worked out for the amount in the way prescribed by regulation. indexation day—see section 18 (1) (b).

Duties in relation to motor accidents Division 1.2.4

20 Duty to act in good faith—applicants, claimants and (1) This section applies to the following people: (a) a licensed insurer; (b) an applicant for defined benefits in relation to a motor accident; (c) a claimant for a motor accident claim. (2) Each person to whom this section applies— (a) has a duty to act in good faith in relation to an application for defined benefits or a motor accident claim; and (b) must endeavour to finalise the application, or resolve the claim, as justly and promptly as possible. (3) The duty of an applicant or claimant to act in good faith in relation to an application for defined benefits or a motor accident claim includes (a) a duty to act honestly and with integrity at all times, and not to mislead, in all dealings and communications in relation to the application or claim; (b) a duty to disclose, in a timely manner— (i) all relevant information in relation to the application or claim, including reports by health practitioners; and Note Health practitioner—see the Legislation Act, dictionary, pt 1. (ii) any other information reasonably requested by an insurer in relation to the application or claim; (c) a duty to do all things reasonably necessary to facilitate the resolution of a dispute in relation to the application or claim;

(d) a duty to take all reasonable steps to minimise the loss caused by the applicant’s or claimant’s personal injury, including— (i) undertaking reasonable and necessary treatment and care, rehabilitation and vocational training; and (ii) applying for treatment and care benefits as soon as practicable after the motor accident or after the applicant or claimant becomes aware of the personal injury; and (iii) starting or returning to work as soon as practicable after a health practitioner certifies that the applicant or claimant is fit for starting or returning to work. (4) The duty of a licensed insurer to act in good faith in relation to an application for defined benefits or a motor accident claim includes the (a) a duty to disclose, as soon as practicable, all information that an applicant or claimant may reasonably need to understand the process for applying for defined benefits or making a motor (b) a duty to give an applicant information about the applicant’s entitlements to defined benefits; (c) a duty to keep an applicant or claimant informed at all times about the status or progress of their application or claim; (d) a duty to give the applicant or claimant written reasons for all decisions having a material effect on an entitlement to defined benefits or damages; (e) a duty to tell an applicant or claimant about the applicant’s or claimant’s right to review of a decision of the insurer; (f) a duty to promptly pay any defined benefits to which a person is entitled or damages agreed to in settlement of the motor accident claim or ordered by a court.

Duties in relation to motor accidents Division 1.2.4 (5) If a court or the ACAT is hearing a dispute involving a licensed insurer and an applicant or claimant in relation to an application for defined benefits or a motor accident claim, the court or the ACAT may— (a) take into account a duty the insurer, applicant or claimant has under this section; and (b) make an order in relation to the exercise of the duty.

21 Obligation to cooperate with MAI insurer—responsible person and driver (1) This section applies if personal injury is caused by a motor accident. (2) The responsible person for, or the driver of, a motor vehicle involved in the motor accident must comply fully with any reasonable request made by the MAI insurer for the motor vehicle for information in relation to an application for defined benefits or a motor accident claim resulting from the motor accident. (3) This section does not apply to a person if the person has a reasonable excuse for failing to comply with the request.

Part 1.3 Motor accident injuries commission Note The governance of territory authorities, including the MAI commission, is regulated by the Financial Management Act 1996 (the FMA), pt 9 as well as the Act that establishes them. For example, the FMA, pt 9 deals with the corporate status of territory authorities and their powers. 22 Establishment of commission The Motor Accident Injuries Commission is established. 23 Constitution of commission The commission consists of the MAI commissioner. 24 Appointment of MAI commissioner (1) The Minister must appoint a public servant as the MAI commissioner. Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3. Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207). (2) An appointment must be for a term of not longer than 5 years. Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

25 Functions of MAI commission The MAI commission has the following functions: (a) to regulate the licensing of insurers operating under the motor accident injuries insurance scheme under this Act, including to issue, suspend or cancel licences for insurers and supervise insurers;

Motor accident injuries commission Part 1.3 (b) to ensure that premiums fully fund the present and likely future liability under this Act but are not excessive; (c) to keep the insurance industry deed under review and make recommendations for its amendment; (d) to monitor insurers’ compliance with their obligations under this Act; Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104). (e) to approve or reject MAI premiums and make guidelines in relation to premiums under this Act; (f) to provide, or facilitate or regulate the provision of, information to the public about the motor accident injuries insurance scheme, causes of motor vehicle accidents, the insurance business, licensed insurers, defined benefits (including applications for defined benefits) and motor accident claims, and dispute resolution; (g) to manage complaints about the market practices of licensed insurers and the handling practices of insurers in relation to applications for defined benefits and motor accident claims; (h) to issue, monitor and review the MAI guidelines and other statutory instruments under this Act; (i) to monitor, and advise the Minister about, the administration, efficiency and effectiveness of the motor accident injuries insurance scheme; (j) to investigate any issue affecting the viability of the motor accident injuries insurance scheme; (k) to support and promote safety in the use of motor vehicles and the prevention of motor accidents;

(l) to develop and coordinate strategies to identify and combat fraud in or related to applications for defined benefits and motor (m) to keep the motor accident injuries insurance scheme generally under review and make recommendations for its amendment; (n) any other function given to the MAI commission under this Act or another territory law. Note A provision of a law that gives an entity (including a person) a function

26 Functions of MAI commissioner The MAI commissioner has the functions given to the MAI commissioner under this Act or another territory law. Note A provision of a law that gives an entity (including a person) a function

27 Meaning of staff of the MAI commission staff of the MAI commission means— (a) staff employed under section 28; and (b) consultants and contractors engaged under section 29.

28 MAI commission employed staff (1) The MAI commission may employ staff on behalf of the Territory. (2) The staff must be employed under the Public Sector Management Act 1994. Note The Public Sector Management Act 1994, div 8.2 applies to the MAI commission in relation to the employment of staff (see Public Sector Management Act 1994, s 152).

Motor accident injuries commission Part 1.3

29 MAI commission consultants and contractors (1) The MAI commission may, on behalf of the Territory, engage consultants and contractors to assist the commission in exercising its functions. (2) However, the MAI commission must not enter into a contract of employment under this section.

30 Delegation by MAI commission (1) The MAI commission may delegate the MAI commission’s functions under this Act or another territory law to— (a) a member of staff of the MAI commission; or (b) a public employee; or (c) a person prescribed by regulation. Note 1 Public employee—see the Legislation Act, dictionary, pt 1. Note 2 For the making of delegations and the exercise of delegated functions, (2) A delegate may subdelegate to a person mentioned in subsection (1) (b) or (c) a function delegated under subsection (1) if the subdelegation is authorised, in writing, by the MAI commission.

31 Delegation by MAI commissioner The MAI commissioner may delegate the MAI commissioner’s functions under this Act or another territory law to— (a) a member of staff of the MAI commission; or (b) a public employee; or (c) a person prescribed by regulation. Note 1 Public employee—see the Legislation Act, dictionary, pt 1. Note 2 For the making of delegations and the exercise of delegated functions,

32 MAI commission arrangements for staff and facilities The MAI commission may arrange with the head of service to use the services of a public servant or Territory facilities. Note The head of service may delegate powers in relation to the management of public servants to a public servant or another person (see Public Sector Management Act 1994, s 18).

Interpretation—ch 2 Part 2.1

Chapter 2 Motor accident injuries— defined benefits

33 Meaning of defined benefits defined benefits means the following benefits: (a) income replacement benefits; (b) treatment and care benefits; (c) quality of life benefits; (d) death benefits; (e) funeral benefits.

34 Meaning of relevant insurer for motor accident relevant insurer, for a motor accident, means— (a) for a single vehicle accident—the insurer of the motor vehicle; and (b) for a multiple vehicle accident— (i) for a no-fault motor accident—the insurer of a motor vehicle involved in the accident determined under an approved industry arrangement to be the relevant insurer for the accident; or Note No-fault motor accident—see s 254.

(ii) for any other case—the insurer of the motor vehicle whose driver or responsible person was most at fault in the motor Note See s 40 for provisions relating to interstate relevant insurers. approved industry arrangement means an arrangement— (a) between licensed insurers and the nominal defendant for determining the relevant insurer for a motor accident; and (b) approved, in writing, by the MAI commission. insurer, of a motor vehicle, means— (a) for an insured motor vehicle—the MAI insurer for the motor (b) for a motor vehicle insured by an interstate insurer—the interstate insurer; or Note Interstate insurer—see the dictionary. (c) for an uninsured motor vehicle—the nominal defendant; or (d) for an unidentified motor vehicle—the nominal defendant.

35 Meaning of full and satisfactory explanation by applicant—ch 2 (1) For this chapter, a full and satisfactory explanation by an applicant for a delay in applying for defined benefits is a full account of the conduct, including the actions, knowledge and belief of the applicant, from the date of the motor accident until the date of providing the explanation.

Interpretation—ch 2 Part 2.1 (2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the applicant would have been justified in experiencing the same delay. Examples—full and satisfactory explanation 1 An application for defined benefits in relation to a motor accident is delayed because a person injured in the motor accident becomes aware of the person’s injury sometime after the motor accident.

2 An application for defined benefits in relation to a motor accident is delayed because a person injured in the motor accident was not aware of the application process because the person did not receive accurate or timely information about the process. 3 An application for death benefits is delayed because the appointment of an executor for the dead person’s estate is delayed. 4 An application for death benefits is delayed because the dead person’s personal representative delayed in working out whether they were entitled to make the application.

36 Meaning of person who died as a result of a motor accident person who died as a result of a motor accident means an individual who dies— (a) as a result of a personal injury the person sustained as a result of a motor accident; and (b) within 2 years after the date of the motor accident. Note Dead person means a person who died as a result of a motor accident (see dict).

38 Person injured in motor accident entitled to defined If a person sustains a personal injury as a result of a motor accident in the Territory, defined benefits are payable in relation to the personal injury.

39 Defined benefits payable by relevant insurer The defined benefits payable to a person in relation to a personal injury are payable by the relevant insurer for the motor accident.

40 Payment of defined benefits by interstate relevant insurer (1) This section applies if the relevant insurer for a motor accident is an interstate insurer (the interstate relevant insurer). Note Interstate insurer—see the dictionary. (2) The interstate relevant insurer must— (a) pay the defined benefits payable as a result of the motor (b) enter into an arrangement with a licensed insurer that is an associated entity of the interstate relevant insurer for the licensed insurer to be the relevant insurer for the motor accident; or (c) enter into an arrangement with the nominal defendant for the nominal defendant to manage the payment of the defined benefits on behalf of the interstate relevant insurer.

Entitlement to defined benefits Division 2.2.1 (3) However, if the insurance policy of an interstate relevant insurer does not provide benefits, on a no-fault basis, to an at-fault driver who sustains a personal injury in the motor accident— (a) the nominal defendant is the relevant insurer for the motor accident for an application for defined benefits made by the at-fault driver; and (b) the interstate relevant insurer must give the nominal defendant any information it has in relation to the at-fault driver’s application for defined benefits. (4) If the interstate relevant insurer enters into an arrangement with the nominal defendant under subsection (2) (c), the nominal defendant— (a) has complete authority to make decisions for the management of the payment of the defined benefits; and (b) may request an advance from the nominal defendant fund to fund the payment of the defined benefits; and (c) may charge the interstate relevant insurer a fee for managing the payment of the defined benefits. (5) The nominal defendant may recover as a debt from the interstate relevant insurer any costs reasonably incurred by the nominal defendant in relation to the management of the payment of the defined benefits. (6) The nominal defendant may bring a proceeding for recovery of costs

(7) This section does not affect a right of recovery that the nominal defendant may have, apart from this section, against the responsible person for, or the driver of, the motor vehicle at fault in the motor Note An amount recovered under this section by the nominal defendant must associated entity, of an interstate relevant insurer—see the Corporations Act, section 50AAA.

Division 2.2.2 Limitations and exceptions to

41 Meaning of driving offence driving offence means an offence against any of the following provisions: (a) the Crimes Act 1900, section 20 (Recklessly inflicting grievous bodily harm); (b) the Criminal Code, section 318 (Taking etc motor vehicle without consent); (c) the Road Transport (Alcohol and Drugs) Act 1977— (i) section 19 (Prescribed concentration of alcohol in blood or breath), if the convicting court finds that the concentration of alcohol in the person’s blood or breath was at level 3; or (ii) section 21 (Prescribed concentration of alcohol and prescribed drug in bodily fluid), if the convicting court finds that the concentration of alcohol in the person’s blood or breath was at level 3; or

(iii) section 24 (Driving under the influence of intoxicating liquor or a drug), if— (A) the offence relates to driving under the influence of intoxicating liquor; and (B) a copy of a certificate or statement under that Act, section 41 (1) (a), (c) or (g) (Evidentiary certificate— alcohol-related tests) or section 41AD (Evidentiary certificate—analysis of sample for prescribed drug etc) that is admitted in evidence in a proceeding in relation to the offence shows that the concentration of alcohol in the person’s blood or breath was equivalent to level 3; or (iv) section 24A (1) (Use vehicle or animal on road or road related area under influence of alcohol or drug), if a copy of a certificate under that Act, section 41 (1) (g) or section 41AD that is admitted in evidence in a proceeding in relation to the offence shows that the concentration of alcohol in the person’s blood was equivalent to level 3; or (v) section 24A (2) if— (A) a copy of a certificate under that Act, section 41 (1) (g) or section 41AD that is admitted in evidence in a proceeding in relation to the offence shows that the concentration of alcohol in the person’s blood was equivalent to level 3 or level 4; or (B) the offence relates to the person being under the influence of a drug; (d) the Road Transport (Safety and Traffic Management) Act 1999— (i) section 5A (Races, attempts on speed records, speed trials etc); or (ii) section 5B (Improper use of motor vehicle); or

(iii) section 5C (Failing to stop motor vehicle for police); or (iv) section 6 (1) (a), (b) or (c) (Negligent driving); or (v) section 7 (Furious, reckless or dangerous driving); (e) a provision prescribed by regulation.

42 Definitions—div 2.2.2 found guilty, of an offence— (a) includes having the offence taken into account under the Crimes (Sentencing) Act 2005, section 57 (Outstanding additional offences taken into account in sentencing); but (b) does not include having an order made for the offence under the Crimes (Sentencing) Act 2005, section 17 (Non-conviction orders—general). level, for a concentration of alcohol in blood or breath—see the Road Transport (Alcohol and Drugs) Act 1977, dictionary. outstanding, for a charge—see the Bail Act 1992, section 9D (6).

43 Entitlement limited—uninsured motor vehicle (1) This section applies if a person injured in a motor accident was the responsible person for, or the driver of, an uninsured motor vehicle involved in the motor accident. (2) The injured person is entitled to income replacement benefits only if— (a) the motor accident involved more than 1 motor vehicle and— (i) another motor vehicle involved in the motor accident was an insured motor vehicle when the accident happened; and

(ii) the other vehicle’s insurer is the relevant insurer for the (b) the motor accident— (i) involved only 1 motor vehicle; and (ii) is a no-fault motor accident; or (c) the injured person— (i) is the driver of the uninsured motor vehicle; and (ii) believed on reasonable grounds that— (A) the motor vehicle was an insured motor vehicle when the accident happened; and (B) the responsible person for the motor vehicle consented to the injured person driving the vehicle. (3) The injured person is entitled to quality of life benefits only if— (a) another motor vehicle involved in the motor accident was an insured motor vehicle when the accident happened; and (b) the other vehicle’s insurer is the relevant insurer for the motor

44 Entitlement limited—single driving offence with a driving offence in relation to the motor accident. application is suspended for the period the charge is outstanding.

(3) Any entitlement to income replacement benefits or quality of life benefits by the injured person ends— (a) if the injured person is convicted or found guilty of the driving offence— (i) if the injured person does not appeal the conviction or finding of guilt—at the end of the appeal period for the offence; or (ii) if the injured person appeals the conviction or finding of guilt—when the appeal is finalised and the conviction or finding of guilt is upheld; or provided by the police, the injured person is not entitled to income replacement benefits or quality of life benefits. Note A decision to declare that an injured person is not entitled to income replacement benefits or quality of life benefits is a reviewable decision (see ch 10 and sch 2).

(5) The relevant insurer is not entitled to recover any amount of defined

45 No entitlement—multiple driving offences with 2 or more driving offences in relation to the motor accident. application is suspended for the period a charge is outstanding. (3) Any entitlement to income replacement benefits, treatment and care benefits or quality of life benefits by the injured person ends— (a) if the injured person is convicted or found guilty of 2 or more driving offences— (i) if the injured person does not appeal the convictions or findings of guilt—at the end of the appeal period for the offences; or (ii) if the injured person appeals the convictions or findings of guilt—when the appeal is finalised and the convictions or findings of guilt are upheld; or

provided by the police, the injured person is not entitled to the defined benefits mentioned in subsection (3). Note A decision to declare that an injured person is not entitled to the defined benefits mentioned in s (3) is a reviewable decision (see ch 10 and sch 2). (5) If the injured person is convicted or found guilty of only 1 driving offence, any entitlement to income replacement benefits or quality of life benefits by the injured person ends— (a) if the injured person does not appeal the conviction or finding of guilt—at the end of the appeal period for the offence; or (b) if the injured person appeals the conviction or finding of guilt— when the appeal is finalised and the conviction or finding of guilt is upheld. (6) The relevant insurer is not entitled to recover any amount of defined

46 Entitlement limited—injuries self-inflicted replacement benefits or quality of life benefits if the injury is an intentionally self-inflicted injury. (2) If the death of a person who died as a result of a motor accident is caused by an intentionally self-inflicted injury— (a) the person’s estate is not entitled to quality of life benefits; and (b) a dependant of the person is not entitled to death benefits.

47 Entitlement limited—detainees and young detainees replacement benefits or treatment and care benefits during any period when the person is a detainee or a young detainee. Note A person with an injury to which the LTCS Act applies is eligible to participate in the LTCS scheme even though the person is imprisoned (see LTCS Act, s 15 (3)). detainee—see the Corrections Management Act 2007, section 6. young detainee—see the Children and Young People Act 2008, section 95.

48 No entitlement—serious offences with a serious offence in relation to the motor accident. application is suspended for the period the charge is outstanding. (3) Any entitlement to income replacement benefits, treatment and care benefits or quality of life benefits by the injured person ends— (a) if the injured person is convicted or found guilty of the serious offence— (i) if the injured person does not appeal the conviction or finding of guilt—at the end of the appeal period for the offence; or (ii) if the injured person appeals the conviction or finding of guilt—when the appeal is finalised and the conviction or finding of guilt is upheld; or

provided by the police, the injured person is not entitled to the defined benefits mentioned in subsection (3). Note A decision to declare that an injured person is not entitled to the defined benefits mentioned in s (3) is a reviewable decision (see ch 10 and sch 2). (5) The relevant insurer is not entitled to recover any amount of defined serious offence means an offence against any of the following provisions: (a) the Crimes Act 1900— (i) section 12 (Murder); or (ii) section 15 (Manslaughter); or (iii) section 19 (Intentionally inflicting grievous bodily harm); or

(iv) section 21 (Wounding); or (v) section 29 (Culpable driving of motor vehicle); (b) the Road Transport (Alcohol and Drugs) Act 1977— (i) section 19 (Prescribed concentration of alcohol in blood or breath), if the convicting court finds that the concentration of alcohol in the person’s blood or breath was at level 4; or (ii) section 21 (Prescribed concentration of alcohol and prescribed drug in bodily fluid), if the convicting court finds that the concentration of alcohol in the person’s blood or breath was at level 4; or (iii) section 22 (Refusing to provide breath sample); or (iv) section 22A (Refusing to provide oral fluid sample); or (v) section 22B (Failing to stay for screening test); or (vi) section 22C (Refusing to undergo screening test); or (vii) section 23 (Refusing blood test etc); or (viii) section 24 (Driving under the influence of intoxicating liquor or a drug), if— (A) the offence relates to driving under the influence of intoxicating liquor; and (B) a copy of a certificate or statement under that Act, section 41 (1) (a), (c) or (g) (Evidentiary certificate— alcohol-related tests) or section 41AD (Evidentiary certificate—analysis of sample for prescribed drug etc) that is admitted in evidence in a proceeding in relation to the offence shows that the concentration of alcohol in the person’s blood or breath was equivalent to level 4; or (ix) section 24, if the offence relates to driving under the influence of a drug; or

(x) section 24A (1) (Use vehicle or animal on road or road related area under influence of alcohol or drug) if— (A) a copy of a certificate under that Act, section 41 (1) (g) or section 41AD that is admitted in evidence in a proceeding in relation to the offence shows that the concentration of alcohol in the person’s blood was equivalent to level 4; or (B) the offence relates to the person being under the influence of a drug; (c) the Road Transport (Safety and Traffic Management) Act 1999— (i) section 5A (Races, attempts on speed records, speed trials etc), if the offence is an aggravated offence; or (ii) section 7 (Furious, reckless or dangerous driving), if the offence is an aggravated offence; or (iii) section 8 (Menacing driving); (d) a provision prescribed by regulation.

49 No entitlement—act of terrorism (1) If the MAI commission notifies, in writing, the relevant insurer for a motor accident that the motor accident was caused by, or attributable to, an act of terrorism— (a) a person injured in the motor accident is not entitled to defined benefits in relation to the injury; and (b) the personal representative, or the person who paid or is liable to pay the funeral expenses, of a person who died as a result of the motor accident is not entitled to funeral benefits in relation to the person’s death; and

(c) the dependants of a person who died as a result of the motor accident are not entitled to quality of life benefits or death benefits in relation to the person’s death. act of terrorism— (a) means an act that— (i) causes or threatens to cause death, personal injury or damage to property; and (ii) is designed to influence a government or intimidate the public or a section of the public; and (iii) is carried out for the purpose of advancing a political, religious, ideological, ethnic or similar cause; but (b) does not include a lawful activity or industrial action.

50 Entitlement limited—workers compensation claimant (a) is injured in a motor accident; and (b) is entitled to defined benefits; and (c) makes a claim for compensation under a workers compensation scheme in relation to the injury. (2) A person’s entitlement to relevant defined benefits ends on the day the person’s claim for workers compensation is— (a) accepted; or

(b) otherwise settled in accordance with the workers compensation scheme, including on a without prejudice basis. Example—par (b) a licensed insurer under the Workers Compensation Act 1951 settles a claim with the claimant by agreement to make a payment to the claimant without accepting liability for the claimant’s injury (see that Act, s 133) (3) However, the person’s entitlement to relevant defined benefits is revived if the person’s claim for workers compensation is— (a) withdrawn within 13 weeks after the date of the motor accident; or (b) rejected. Note See also the withdrawal requirements under s 73 (4). (4) Relevant defined benefits are not payable in relation to any benefits paid and not recovered under the workers compensation scheme before the claim was withdrawn or rejected. relevant defined benefits means the following: (a) income replacement benefits; (b) treatment and care benefits; (c) quality of life benefits.

51 When entitlement to certain benefits ends (1) This section applies if a person injured in a motor accident is entitled to— (a) income replacement benefits; or (b) treatment and care benefits.

End of entitlement to certain benefits Division 2.2.3 (2) The person’s entitlement ends on the first occurring of the following: (a) the person dies; (b) for income replacement benefits— (i) the person reaches the pension age plus 2 years; or (ii) if, on the date of the motor accident, the person has reached the pension age and is in paid work—2 years after the date of the motor accident; (c) a motor accident claim for the motor accident is finalised; (d) the person obtains a judgment or an agreement for damages in relation to the person’s injury independently of this Act; (e) 5 years after the date of the motor accident. Note 1 See also s 184, which provides that a foreign national’s entitlement to defined benefits ends in certain circumstances. Note 2 See also divs 2.6.2 and 2.6.3, which provide for when a quality of life benefits application is finally dealt with. Note 3 Pension age—see the dictionary.

Division 2.3.1 Communicating with people in relation to motor accidents Division 2.3.1 Communicating with people in relation to motor accidents 52 Information and support for applicants for defined benefits— (1) The MAI guidelines may make provision for information and support that the relevant insurer for a motor accident must give applicants for defined benefits. (2) In particular, the MAI guidelines may make provision for the (a) the circumstances in which the relevant insurer for a motor accident must give support and information to a person injured in the motor accident; (b) if a person injured in a motor accident contacts an insurer for a motor vehicle involved in the motor accident—the information that must be given to the person about the procedures relating to applying for defined benefits, including— (i) accessing, completing and submitting an application; and (ii) information to be given with an application; and (iii) time limits applying to the making of an application; and (iv) to whom an application must be given; if the injured person can’t work out who is the relevant insurer, that the person give the application to their own insurer

Communicating with people in relation to motor accidents Division 2.3.1 (c) the information that must be given with a receipt notice for an application for treatment and care benefits and income replacement benefits, including information about allowable expenses for treatment and care; Note See s 60 for when a receipt notice is given. (d) the information that must be given in relation to an application for treatment and care benefits and income replacement benefits for which the relevant insurer has accepted liability, including (i) the procedure for obtaining approval for treatment and care; (ii) the procedure for reimbursement of treatment and care expenses, domestic services expenses and travel expenses; (iii) the evidence the applicant must give the insurer about the applicant’s fitness for work, how often the evidence must be given to the insurer and how the applicant must tell the insurer about any change in the applicant’s work arrangements; (e) information to be given to a person injured in a motor accident to help the person decide whether the person is eligible for a quality of life payment, including information about the (i) the WPI needed to be eligible for a quality of life benefit or to make a motor accident claim; (ii) the procedure for applying for a WPI assessment; (iii) the time limits and conditions applying to the making of an application for quality of life benefits;

Division 2.3.1 Communicating with people in relation to motor accidents (f) information to be given to a person who is taken, under section 133 (WPI taken to be 10% in certain circumstances), to have a WPI of 10%, including the following information: (i) the time limits for making a motor accident claim; (ii) seeking legal advice about whether to make a motor (g) information to be given to a person who receives a WPI report under section 157 (WPI 10% or more—injured person entitled to make motor accident claim) or section 164 (Final offer WPI 10% or more—injured person entitled to make motor accident claim) stating that the person’s WPI is at least 10%, including the following information: (i) the consequences of accepting a quality of life benefit; (ii) the time limits for making a motor accident claim; (iii) seeking legal advice about whether to make a motor (h) information to be given to a person injured in a motor accident who receives a notice under section 213 (SOI report—injury has significant occupational impact) stating that the person is entitled to make a motor accident claim in relation to the motor accident, including the following information: (i) the time limits for making a motor accident claim; (ii) seeking legal advice about whether to make a motor accident claim. (3) The MAI guidelines may make provision for when and how a relevant insurer for a motor accident must give the information mentioned in subsection (2) to a person injured in the motor accident.

Subdivision 2.3.2.1 Definitions—pt 2.3 53 Meaning of information—pt 2.3 information includes a record containing information. 54 Meaning of authority to disclose personal health authority to disclose personal health information, for a person injured in a motor accident, means an authority— (a) signed by or on behalf of the injured person; and (b) stating that the injured person consents to the disclosure of (i) by any of the following people: (A) the injured person’s treating health service provider; (B) a member of the injured person’s treating team; (C) a health practitioner who conducts an assessment of the injured person’s needs for treatment and care, including a medical or other examination; (D) an authorised IME provider and an independent medical examiner who conducts a WPI assessment of the person; Note WPI assessment—see s 143. (E) an authorised IME provider and an independent medical examiner or independent assessor who conducts an SOI assessment of the person; and

(ii) to a stated insurer; and person’s entitlement to defined benefits; and (c) stating that the injured person consents to the disclosure of (i) by the stated insurer; and (ii) to any of the people mentioned in paragraph (b) (i); and person’s entitlement to defined benefits; and (d) stating that the consents operate until the injured person either— (i) revokes the authority by notice, in writing, to the stated (ii) is no longer entitled to defined benefits in relation to the motor accident. treating health service provider—see the Health Records (Privacy and Access) Act 1997, dictionary. treating team—see the Health Records (Privacy and Access) Act 1997, dictionary.

Subdivision 2.3.2.2 Making an application for defined

55 Who may apply for defined benefits? (1) Any of the following people may make an application for defined benefits to the relevant insurer for a motor accident: (a) a person injured in the motor accident; Note The person may be entitled to income replacement benefits, treatment and care benefits and quality of life benefits. (b) the dependant of a person who died as a result of the motor accident; Note The dependant may be entitled to death benefits (see s 169). (c) the person who has paid, or is liable to pay, the funeral expenses of a person who died as a result of the motor accident. Note The person may be entitled to funeral benefits (see s 178). (2) The following people may make an application for defined benefits on behalf of a person mentioned in subsection (1): (a) for an applicant for defined benefits who is a person with a legal (b) for an applicant for defined benefits mentioned in subsection (1) (b)—the personal representative of the person who died as a result of the motor accident. Note Personal representative, of a person who died as a result of a motor accident—see the dictionary. Person with a legal disability—see the dictionary.

56 Application for defined benefits—contents (1) An application for defined benefits must be made in accordance with the MAI guidelines. Note The MAI guidelines are made under s 487. (2) The MAI guidelines may make provision for applications, including provision for— (a) making an application; and (b) to whom an application must be given; and (c) the form and contents of an application; and (d) the information that must be included with an application; and (e) the treatment expenses incurred by an applicant before making an application for which the applicant may be reimbursed. (3) The MAI guidelines may require the applicant to do 1 or more of the (a) provide a police accident notification number or police accident report for the motor accident with the application; (b) provide a medical certificate with the application; (c) authorise the relevant insurer to obtain information and documents relevant to the application from stated people; (d) authorise the relevant insurer to provide the information and documents to stated people.

57 Application for defined benefits—authority to disclose personal health information (1) An application for defined benefits made by a person injured in a motor accident must be accompanied by an authority to disclose personal health information. Note Authority to disclose personal health information—see s 54. (2) Subsection (3) applies if an injured person revokes an authority to disclose personal health information while the injured person is still entitled to defined benefits. (3) The insurer may suspend the processing of the injured person’s application, or the payment of defined benefits to the injured person, until the injured person provides, in writing, any information disclosure consents that are reasonably required by the insurer to process the application or assess or otherwise manage the injured person’s entitlement to defined benefits. (4) The MAI guidelines may make provision in relation to the circumstances in which an injured person must give the relevant insurer for a motor accident an information disclosure consent under subsection (3). information disclosure consent means either of the following: (a) a consent, signed by or on behalf of the injured person, to the disclosure of personal health information about the injured (i) by any of the following people: (A) the injured person’s treating health service provider; (B) a member of the injured person’s treating team;

(C) a health practitioner who conducts an assessment of the injured person’s needs for treatment and care, including a medical or other examination; (D) an authorised IME provider and an independent medical examiner who conducts a WPI assessment of the person; Note WPI assessment—see s 143. (E) an authorised IME provider and an independent medical examiner or independent assessor who conducts an SOI assessment of the person; and (ii) to a stated insurer; and person’s entitlement to defined benefits; (b) a consent, signed by or on behalf of the injured person, to the disclosure of personal health information about the injured (i) by the stated insurer; and (ii) to any of the people mentioned in paragraph (a) (i); and person’s entitlement to defined benefits.

58 Meaning of application period—ch 2 application period, for an application for defined benefits, means— (a) for a person injured in a motor accident—the period of 13 weeks beginning on the date of the motor accident; or Note 1 The person may be entitled to income replacement benefits, treatment and care benefits and quality of life benefits. Note 2 The person would be able to make an additional later application for quality of life benefits (see s 137). (b) for a person who has paid, or is liable to pay, the funeral expenses of a person who died as a result of a motor accident— the period of 13 weeks beginning on the date of the injured person’s death; or Note The person may be entitled to funeral benefits (see s 178). (c) for the dependant or personal representative of a person who died as a result of a motor accident—the period of 13 weeks beginning on the date of the injured person’s death. Note The dead person’s dependants may be entitled to death benefits (see s 169).

59 Application for defined benefits—must be made within application period (1) An application for defined benefits in relation to a motor accident must be made within the application period. (2) The relevant insurer for a motor accident may accept an application for defined benefits made after the application period (a late application) if— (a) the application is made— (i) for income replacement benefits or treatment and care benefits, or both—within 2 years after the date of the motor (ii) for death benefits and funeral benefits—within 1 year after the date of the injured person’s death; and (b) the relevant insurer is satisfied the applicant has a full and satisfactory explanation for the late application. Note Full and satisfactory explanation—see s 35. (3) The relevant insurer— (a) may ask the applicant for additional information in relation to the application; and (b) need not make a decision about accepting the application until the insurer receives the additional information. (4) However, if the relevant insurer does not respond to the applicant about the applicant’s explanation for the late application within 28 days after receiving it, the relevant insurer is taken to have accepted the application. (5) The relevant insurer need not accept an application if the application is made after the time stated in subsection (2) (a).

60 Application for defined benefits—action following receipt (1) If the relevant insurer for a motor accident receives an application for defined benefits, the relevant insurer must, within the period stated in the MAI guidelines— (a) for an application made during the application period—give the applicant a written notice (a receipt notice) that includes— (i) information about how the applicant may apply for payment of allowable expenses; and (ii) other information required by the MAI guidelines; or (b) for a late application—give the applicant a written notice (a late receipt notice) stating that defined benefits will be paid to the applicant if the insurer accepts the application; or (c) for an application that is incomplete—return the application to the applicant accompanied by a notice (a required additional information notice) stating the additional information needed to complete the application and that the application will not be dealt with until the relevant insurer receives the additional information. (2) For subsection (1) (c), an application is incomplete if the application— (a) is not signed by or on behalf of the applicant; or (b) does not include all the information required, under the MAI guidelines or a regulation, to be included in the application. (3) A receipt notice or late receipt notice must be in the form, and include the information, required by the MAI guidelines.

61 Meaning of allowable expenses—ch 2 (1) In this chapter: allowable expenses means expenses an applicant for defined benefits may incur in relation to treatment and care of the applicant’s injury without the relevant insurer’s approval during the initial period for the application for defined benefits. initial period, for an application for defined benefits, means the period— (a) beginning on the date of the receipt notice for the application; and (b) ending— (i) on the day the relevant insurer makes, or is taken to have made, a final decision to accept or reject liability for the application; or (ii) if the insurer transfers the application to another insurer— 4 weeks after the date of the receipt notice for the application; or (iii) if there is a dispute between insurers about liability under section 70—4 weeks after the date of the receipt notice for the application.

62 Allowable expenses—relevant insurer must pay The relevant insurer for a motor accident must pay an applicant for defined benefits’ allowable expenses if the applicant provides the relevant insurer with a receipt for the allowable expenses.

Payment of allowable expenses Division 2.3.3

63 Allowable expenses—MAI guidelines The MAI guidelines may make provision in relation to the allowable expenses for treatment and care for an applicant for defined benefits in relation to a motor accident, including provision in relation to the (a) the treatment and care for which the applicant may incur allowable expenses, including restrictions in relation to the Example—restrictions the number of doctor’s appointments an applicant may have (b) verifying the injured person’s allowable expenses; (c) the period for which allowable expenses are payable; (d) the amount of allowable expenses.

64 Allowable expenses—relevant insurer later rejects liability for defined benefits (1) This section applies if a relevant insurer pays an amount of allowable expenses to an applicant. (2) If the relevant insurer later rejects liability for defined benefits for the applicant, the following applies: (a) if the relevant insurer (the first insurer) rejects liability for the defined benefits because another insurer is the relevant insurer for the application— (i) the amount of allowable expenses paid is not recoverable from the applicant; but (ii) the first insurer may recover the amount as a debt from the other insurer;

(b) if the relevant insurer rejects liability for the defined benefits because the application was based on false or misleading information, the insurer may recover the amount of allowable expenses paid as a debt from the applicant. Division 2.3.4 Accepting or rejecting liability for defined benefits

65 Relevant insurer must decide liability for defined benefits (1) If a relevant insurer for a motor accident receives an application for defined benefits, the relevant insurer must, within 28 days after the date of the receipt notice given to the applicant— (a) decide whether the relevant insurer accepts or rejects liability for the defined benefits; and (b) give the applicant a notice about the decision. (2) If the relevant insurer accepts liability for the defined benefits, the relevant insurer must give the applicant a written notice (a defined benefits notice)— (a) stating that the insurer accepts liability for the defined benefits; and (b) including any information required under the MAI guidelines. (3) If the relevant insurer does not accept liability for the defined benefits, the relevant insurer must give the applicant either— (a) a written notice (a transfer notice) stating— (i) that the insurer does not accept liability for the defined benefits because another insurer is liable; and (ii) that the application has been given to another insurer; and (iii) the name and contact details of the other insurer; or Note Transfers of applications are dealt with in s 69.

Accepting or rejecting liability for defined benefits Division 2.3.4 (b) a written notice (a rejection notice) stating— (i) that the insurer does not accept liability for the defined (ii) the reasons for the decision; and (iii) how the applicant may dispute the decision. (4) If the relevant insurer fails to give the applicant a transfer notice or rejection notice within the 28 days, the relevant insurer— (a) is taken to have accepted liability for the defined benefits; and (b) is liable for the defined benefits; and (c) must give the applicant a defined benefits notice. Note 1 A decision by a relevant insurer to accept liability does not prevent the insurer from making a later decision to reject the liability (see s 68). Note 2 For how documents may be given, see the Legislation Act, pt 19.5. (5) This section is subject to section 70 (Dispute about liability for application).

66 Accepting liability—payment of defined benefits (1) If a relevant insurer accepts liability for defined benefits, the insurer must pay the applicant the defined benefits to which the applicant is entitled. Note If relevant insurer receives an application for death benefits, the insurer must apply to the ACAT for an order for the payment of the death benefits to the dependants (see s 176). (2) The MAI guidelines may make provision in relation to the payment of defined benefits.

67 Rejecting liability (1) If a relevant insurer gives an applicant a rejection notice, liability for the application is taken to have been rejected on the day the relevant insurer gives the notice to the applicant. Note For how documents may be given, see the Legislation Act, pt 19.5. (2) If the relevant insurer rejects liability for defined benefits for any of the following reasons, the relevant insurer may recover as a debt from the applicant any amounts paid to the applicant under this part: (a) the applicant was not entitled to defined benefits under either of the following sections when the applicant applied for defined benefits: (i) section 45 (No entitlement—multiple driving offences); (ii) section 48 (No entitlement—serious offences); (b) information in the application is false or misleading; (c) information the applicant gave a doctor or other health practitioner in relation to the applicant’s injury is false or misleading; (d) information the applicant gave the police or a lawyer in relation to the motor accident is false or misleading. (3) This section is subject to section 69 (Transferring application to another insurer).

68 Insurer may change decision about accepting or rejecting liability (1) A decision by a relevant insurer to accept liability for defined benefits does not prevent the insurer from making a later decision to reject the liability. Note Section 65 (3) applies to a later decision to reject liability.

Transfer of application to another insurer Division 2.3.5 (2) However, if a relevant insurer later rejects liability, the insurer may only recover amounts paid to the applicant under this part from a relevant insurer who later accepts liability for the defined benefits. (3) A decision by a relevant insurer to reject liability for defined benefits does not prevent the insurer from making a later decision to accept the liability. Division 2.3.5 Transfer of application to another

69 Transferring application to another insurer (1) This section applies if the relevant insurer for a motor accident (the first insurer) intends to reject liability for defined benefits because another insurer (the second insurer) appears to be liable for the (2) Before the first insurer gives the applicant a transfer notice under section 65 (Relevant insurer must decide liability for defined benefits), the first insurer must give the second insurer the applicant’s application for defined benefits, and any information the applicant gave the first insurer in relation to the application. (3) The application is taken to have been given to the second insurer on the date it was given to the first insurer. (4) If, after assessing the application, the second insurer decides to accept liability for the application, as soon as practicable, but not later than 28 days after the date of the receipt notice given to the applicant by the first insurer— (a) the first insurer must give the applicant the transfer notice; and (b) the second insurer must tell the applicant— (i) about the decision to accept liability for the application; and

Division 2.3.5 Transfer of application to another insurer (ii) that the applicant must give the second insurer an authority to disclose personal health information. Note Authority to disclose personal health information— see s 54. (5) Liability for the application is taken to have been transferred to the second insurer when the applicant receives notification of the second insurer’s decision under subsection (4). (6) The first insurer may recover the following amounts as a debt from the second insurer: (a) any amounts of the applicant’s allowable expenses already paid; (b) the cost of managing the application.

70 Dispute about liability for application (a) the relevant insurer for a motor accident (the first insurer) intends to reject liability for the application because another insurer (the second insurer) appears to be the relevant insurer for the motor accident; and (b) the second insurer disputes its liability for the application. (2) The first insurer— (a) must not give the applicant a transfer notice; and (b) must give the MAI commission written notice of the dispute. (3) If the first insurer gives the MAI commission a notice under subsection (2) (b)— (a) section 65 (Relevant insurer must decide liability for defined benefits) does not apply in relation to the application until the dispute is resolved; and

Miscellaneous—pt 2.3 Division 2.3.6 (b) the first insurer must notify the applicant— (i) about the dispute; and (ii) that the first insurer continues to be liable for the applicant’s allowable expenses; and (iii) that the first insurer is liable for the applicant’s treatment and care benefits, income replacement benefits and funeral benefits in accordance with this chapter until the dispute is resolved. (4) The dispute must be dealt with in accordance with the insurance industry deed. (5) If the second insurer is found to be liable for the application, the first insurer may recover the following amounts as a debt from the second insurer: (a) any amounts of the applicant’s allowable expenses already paid; (b) any defined benefits already paid; (c) the cost of managing and disputing the application. (6) If the second insurer is found to be liable for the application, the second insurer must not dispute a decision the first insurer made in relation to any amounts paid to the applicant by the first insurer.

71 Fraudulent applications or requests receives— (a) an application for defined benefits from a person injured in the

(b) a request for reimbursement of expenses for treatment and care for an applicant that are incurred before the application is made or while the application is being considered; or (c) a request from a provider of treatment and care for payment of treatment and care provided to an applicant. (2) If the relevant insurer reasonably suspects that information in the application or request is false or misleading, the relevant insurer may refuse to— (a) accept liability for the application; or (b) reimburse the applicant; or (c) pay the provider. Note 1 It is an offence to make a false or misleading statement, give false or Note 2 The insurer may recover from the applicant any costs reasonably incurred because of the applicant’s fraudulent conduct (see s 349). (3) However, if the relevant insurer later establishes that the information in the application or request is not false or misleading, the relevant insurer must— (a) reimburse the applicant for the expenses incurred; or (b) pay the provider for the treatment and care. (4) Despite subsection (2), if the relevant insurer has not made a decision to accept or reject liability for the application, the relevant insurer must pay the applicant’s allowable expenses.

72 Recovery of amounts paid for defined benefits (a) the relevant insurer for a motor accident pays an amount under this part to an applicant for defined benefits; and

Miscellaneous—pt 2.3 Division 2.3.6 (b) the insurer was not liable for the amount. (2) The relevant insurer may recover as a debt from the applicant any amount for which the relevant insurer was not liable under this part. (3) If the relevant insurer rejects an application for defined benefits because the applicant’s injury was not a result of the motor accident, the relevant insurer is not entitled to recover as a debt any amount paid to the applicant before the application was rejected unless the application was fraudulent or included information that was false or misleading.

73 Application for defined benefits—notification of claim (a) an application for defined benefits (the defined benefits application) is made under this part— (i) by a person injured in a motor accident; or (ii) in relation to the injured person; and (b) a claim for compensation under a workers compensation scheme (the workers compensation claim) is made in relation to the injury. Note There is no requirement for both an application for defined benefits and a claim for workers compensation to be made in relation to a motor (2) The claimant for the workers compensation claim must give the relevant insurer written notice about the following: (a) that the workers compensation claim has been made; (b) whether liability for the workers compensation claim has been accepted or rejected; (c) any amounts paid to or on behalf of the claimant under the workers compensation claim.

(3) The notice must be given to the relevant insurer— (a) if the workers compensation claim is made before the defined benefits application—when the defined benefits application is made; or (b) if the workers compensation claim is made after the defined benefits application—within 3 business days after the workers compensation claim is made. (4) However, if the person withdraws the workers compensation claim within 13 weeks after the date of the motor accident, the person must give the relevant insurer for the motor accident written notice of the withdrawal— (a) if the workers compensation claim is withdrawn before the defined benefits application is made—when the defined benefits application is made; or (b) if the workers compensation claim is withdrawn after the defined benefits application is made—within 3 business days after the workers compensation claim is withdrawn. (5) If a relevant insurer receives a notice under subsection (2) or (4), the relevant insurer may get information about the workers compensation claim from the insurer for the workers compensation claim. Note A person’s entitlement to certain defined benefits ends on the day a workers compensation claim is accepted, however may be revived if the person’s workers compensation claim is withdrawn within 13 weeks after the date of the motor accident or if the claim is rejected (see s 50 (3)).

Part 2.4 Defined benefits—income replacement benefits Division 2.4.1 Income replacement benefits— important concepts 74 Definitions—pt 2.4 fitness for work certificate—see section 104. self-employed—a person is self-employed if the person derives income from providing labour, skills or knowledge to a business carried on by the person. unpaid leave, from paid work, includes— (a) unpaid parental leave; and (b) unpaid leave for more than 52 weeks.

75 Meaning of income replacement benefit payment—pt 2.4 income replacement benefit payment, for an injured person, means income replacement benefits payable under the following: (a) section 96 (Amount of income replacement benefits—first payment period); (b) section 97 (Amount of income replacement benefits—second payment period).

76 Meaning of gross income—pt 2.4 For this part, gross income, of an injured person who is an employee— (a) includes the following: (i) any amount paid to the injured person as wages, bonuses, commissions or allowances; (ii) any amount paid to the injured person as overtime; (iii) any amount paid to the injured person as penalty payments for shift work; (iv) any amount paid to the injured person if the person was on paid leave; (v) any amount otherwise payable to the injured person under a voluntary salary sacrifice arrangement; (vi) any amount paid for loss of income under a workers compensation scheme; but (b) does not include the following: (i) any contribution paid or payable on behalf of the person by the person’s employer to a superannuation scheme for the benefit of the person; (ii) any redundancy or voluntary early retirement payment received by the person from the person’s employer; (iii) any amount paid for unused leave on termination of employment; (iv) any other amount paid as a lump sum as a consequence of termination of employment; (v) any allowance or benefit prescribed by regulation received by the person from the person’s employer.

77 Meaning of net income—pt 2.4 net income, of an injured person who is self-employed, means the net income the person derives, or will derive, from carrying on a business, to the extent that the income is attributable to labour, skills or knowledge the person provides, or will provide, to the business.

78 Meaning of paid work—pt 2.4 (1) For this part, a person is in paid work if the person is engaged in any work for remuneration or other financial benefit— (a) whether as an employee, a self-employed individual or otherwise; and (b) whether the person was in full-time or part-time work; and (c) whether or not the person was on paid leave. Note The injured person’s pre-injury weekly income is worked out under s 81, s 82, s 83 or s 84. (2) The MAI guidelines may make provision for what is, or is not, taken to be paid work.

79 Meaning of capable of being in paid work—pt 2.4 (1) For this part, a person injured in a motor accident is capable of being in paid work if, on the date of the motor accident— (a) the person— (i) is not in paid work; but (ii) had been in paid work for at least 260 hours in the 52 weeks immediately before the date of the motor accident; or Note The injured person’s pre-injury weekly income is worked out under s 83.

(b) the person is receiving a weekly payment or other payment in relation to loss of income under this Act or the Workers Compensation Act 1951 (or a corresponding law of a State or another Territory); or Note The person’s pre-injury weekly income is worked out under s 84. (c) the person— (i) was on unpaid leave from paid work immediately before the date of the motor accident; and (ii) anticipated returning to paid work on a date after the motor Note The person’s pre-injury earning capacity is worked out under s 85. (d) the person has entered into an arrangement with an employer or other person to undertake employment or to start business as a self-employed person on the date of the motor accident or a stated date after the date of the motor accident; or Note The person’s pre-injury earning capacity is worked out under s 86. (e) the person— (i) is at least 15 years old; and (ii) is enrolled in a course of studies as a full-time student; and (iii) expects to be in paid work after completing— (A) the course; or (B) if the person was in secondary school—the final year of secondary school. Note The person’s pre-injury earning capacity is worked out under s 87. (2) The MAI guidelines may make provision in relation to the matters to be taken into account for determining whether an injured person is capable, or not capable, of being in paid work.

80 Meaning of pre-injury income pre-injury income, for an injured person, means the person’s pre-injury weekly income or pre-injury earning capacity.

81 Meaning of pre-injury weekly income—ongoing employee or fixed term contractor pre-injury weekly income, for an ongoing employee or fixed term contractor, means— (a) the average weekly amount of the sum of the following amounts from all paid work undertaken by the person in the 52 weeks immediately before the date of the motor accident: (ii) the person’s net income as a self-employed person; or (b) if the person had a recent change in employment circumstances—the average weekly amount of the person’s gross income for the period— (i) starting on the date of the change; and (ii) ending on the day before the date of the motor accident. eligible fixed term contractor means a fixed term contractor who, at the time of the motor accident, had at least 26 weeks remaining on their contract. ongoing employee or fixed term contractor means a person injured in a motor accident who was, on the date of the motor accident engaged in ongoing employment or under a fixed term contract.

recent change in employment circumstances, for an ongoing employee or eligible fixed term contractor, means a change that— (a) happened during the 52 weeks immediately before the date of the motor accident; and (b) was a significant change in the person’s employment circumstances that resulted in the person regularly earning, or becoming entitled to earn, more on a weekly basis. Examples—significant change 1 the person started work with a new employer 2 the person returned to work following unpaid leave of at least 8 weeks 3 the person increased their normal number of hours of work 4 the person received an increase in income based on the person’s work performance

82 Meaning of pre-injury weekly income—self-employed pre-injury weekly income, for a self-employed person, means the average weekly amount of the sum of the following amounts from all paid work undertaken by the person in the 52 weeks immediately before the date of the motor accident: (a) the person’s gross income as an employee; (b) the person’s net income as a self-employed person. (2) If, as a result of the injured person’s injury, the injured person engages someone (a hiree) to perform the injured person’s work, the amount paid to the hiree may be taken into account for working out the person’s pre-injury weekly income. self-employed person means a person injured in a motor accident who was, on the date of the motor accident, self-employed.

83 Meaning of pre-injury weekly income—casual worker pre-injury weekly income, for a casual worker, means the higher of (a) the average weekly amount of the sum of the following amounts from all paid work undertaken by the person in the 52 weeks immediately before the date of the motor accident: (ii) the person’s net income as a self-employed person; (b) if the person worked the 260 hours in the 13 weeks immediately before the date of the motor accident or is unable to give evidence of the person’s income in the 52 weeks immediately before the date of the motor accident—the average weekly amount of the sum of the following amounts from all paid work undertaken by the person in the 13 weeks: (ii) the person’s net income as a self-employed person. casual worker means a person injured in a motor accident who— (a) was not, on the date of the motor accident— (i) an ongoing employee or fixed term contractor; or (ii) a self-employed person; but (b) was in paid work for at least 260 hours in the 52 weeks immediately before the date of the motor accident.

84 Meaning of pre-injury weekly income—person receiving workers compensation pre-injury weekly income, for a person receiving workers compensation, means the average weekly amount of the sum of the following amounts from all paid work undertaken by the person in the 52 weeks immediately before the date of the motor accident: (a) the person’s gross income as an employee; (b) the person’s net income as a self-employed person. Note The MAI guidelines may make provision in relation to the matters to be taken into account to determine an injured person’s pre-injury weekly income or pre-injury earning capacity (see s 88). person receiving workers compensation means a person injured in a motor accident who was, on the date of the motor accident, receiving a weekly payment or other payment in relation to loss of income under a workers compensation scheme.

85 Meaning of pre-injury earning capacity—person on unpaid leave pre-injury earning capacity, for a person on unpaid leave, means the average weekly amount of the person’s gross income from paid work— (a) in the 52 weeks immediately before the person started the unpaid leave; or (b) if the person had a significant change in circumstances in relation to their paid work in the 52 weeks immediately before the person started the unpaid leave—for the period— (i) starting on the date the significant change happened; and

(ii) ending on the day before the person started the unpaid leave. Examples—significant change 1 the person started work with a new employer 2 the person returned to work following unpaid leave of at least 8 weeks 3 the person increased their normal number of hours of work 4 the person received an increase in income based on the person’s work performance person on unpaid leave means a person injured in a motor accident who— (a) was on unpaid leave from paid work on the date of the motor (b) anticipated returning to paid work on a date after the motor

86 Meaning of pre-injury earning capacity—person with new work arrangement pre-injury earning capacity, for a person with a new work arrangement, means the weekly amount of the following agreed to be paid to the injured person under the arrangement: (a) if the person will be an employee under the arrangement—the person’s gross income as an employee; (b) if the person will be self-employed under the arrangement—the person’s net income as a self-employed person.

person with a new work arrangement means a person injured in a motor accident who, on the date of the motor accident— (a) has an arrangement— (i) with an employer or other person to undertake employment; or (ii) to start business as a self-employed person on or after the date of the motor accident; but (b) is not any of the following: (i) an ongoing employee mentioned in section 81; (ii) a self-employed person mentioned in section 82; (iii) a casual worker mentioned in section 83; (iv) an apprentice, trainee or young person mentioned in section 99; (v) a person mentioned in section 84 receiving workers compensation; (vi) a person mentioned section 85 on unpaid leave; (vii) a full-time student mentioned in section 87.

87 Meaning of pre-injury earning capacity—full-time student pre-injury earning capacity, for a full-time student, means the weekly amount the student would have received if— (a) the student had been employed in the occupation for which the student would be qualified on completion of the course of studies in which the student is a full-time student; or

Income replacement benefits—entitlement Division 2.4.2 (b) if the person is a full-time student at a secondary school—the student had been employed on successfully completing the final year of secondary school. full-time student means a person injured in a motor accident who, on the date of the motor accident— (a) was at least 15 years old; and (b) was enrolled in a course of studies as a full-time student; and (c) expected to be in paid work after completing— (i) the course; or (ii) if the person was in secondary school—the final year of secondary school.

88 Pre-injury weekly income and pre-injury earning capacity—MAI guidelines The MAI guidelines may make provision in relation to the matters to be taken into account to determine an injured person’s pre-injury weekly income or pre-injury earning capacity. Division 2.4.2 Income replacement benefits—

89 Who is entitled to income replacement benefits? (1) A person injured in a motor accident is entitled to income replacement benefits if, on the date of the motor accident— (a) the person was at least 15 years old; and (b) the person was— (i) in paid work; or

Division 2.4.2 Income replacement benefits—entitlement (ii) capable of being in paid work. Note 1 Paid work includes paid leave from paid work—see s 78. Note 2 An injured person who is self-employed when the motor accident happened is in paid work—see s 78. (2) The MAI guidelines may make provision in relation to entitlement to income replacement benefits. (3) This section is subject to the following: (a) division 2.2.2 (Limitations and exceptions to entitlement); (b) section 90 (Limited entitlement to income replacement benefits—pension-aged injured person); (c) section 91 (No entitlement to income replacement benefits— death of injured person); (d) section 92 (No entitlement to income replacement benefits— damages already paid).

90 Limited entitlement to income replacement benefits— pension-aged injured person (1) This section applies to a person injured in a motor accident if, on the date of the accident, the person was the pension age, or older. (2) The injured person is entitled to income replacement benefits only if, on the date of the motor accident, the person was in paid work. Note 1 See s 101 for the period for which income replacement benefits are payable for the injured person. Note 2 Pension age—see the dictionary.

91 No entitlement to income replacement benefits—death of replacement benefits if the person is dead. (2) However, subsection (1) does not affect an entitlement to income replacement benefits that accrued before the injured person’s death.

92 No entitlement to income replacement benefits— damages already paid A person injured in a motor accident is not entitled to income replacement benefits if an insurer has already paid damages for the loss of income under a motor accident claim for the motor accident. Division 2.4.3 Income replacement benefits— payments

93 Definitions—div 2.4.3 first payment period means the period of 13 weeks beginning on the date of the motor accident. post-injury earning capacity, of an injured person, means the weekly amount the person has the capacity to earn in paid work for which the person is reasonably suited because of the person’s education, training and experience, based on the person’s fitness for work in that paid work as decided by the relevant insurer under section 100 (1) (Injured person’s post-injury earning capacity). second payment period means the period— (a) beginning on the day after the end of the first payment period; and (b) ending 5 years after the date of the motor accident.

94 Meaning of AWE adjusted—div 2.4.3 (1) In this division: AWE adjusted, for an injured person’s pre-injury income, means the person’s income as adjusted in line with any adjustment in the AWE— (a) after the date of the motor accident in which the person sustained the personal injury; and (b) on a day (an adjustment day) prescribed by regulation for the pre-injury income; and (c) rounded up to the nearest dollar. (2) However, if an amount to be AWE adjusted would, if adjusted in line with the adjustment (the negative adjustment) to the AWE, become smaller, the amount is not reduced in line with the negative (3) An amount that, in accordance with subsection (2), is not reduced may be increased in line with an adjustment in the AWE that would increase the amount only to the extent that the increase, or part of the increase, is not one that would cancel out the effect of the negative (4) Subsection (3) does not apply to a negative adjustment once the effect of the negative adjustment has been offset against an increase in line with an adjustment in the AWE. Example—adjustments On 30 September 2020, Penny has pre-injury income of $1 500 per week. Penny’s entitlement to income replacement benefits started on 15 June 2020. The adjustment days prescribed for pre-injury income are 1 April and 1 October. The AWE last published before 1 October 2020 (for May 2020) is $1 884.30. The AWE published for November 2019 (being 6 months before May 2020) is $1 856.80. The AWE adjustment factor for Penny’s pre-injury income is calculated as follows: $1 884.30 ÷ $1 856.0 = 1.015 (rounded to 3 decimal places).

The amount of Penny’s pre-injury income on the 1 October 2020 adjustment date is calculated as follows: $1 500 × 1.015 = $1 522.50. Penny’s benefit from the adjustment date of 1 October 2020 is $1 522.50, rounded to $1 523.

95 Adjustment of pre-injury income (1) The MAI commission must, on or before each adjustment day for pre-injury income, declare— (a) the AWE adjustment factor for the pre-injury income; and (b) that the AWE adjustment factor applies on the adjustment day. (2) A declaration under subsection (1) is a notifiable instrument. adjustment day—see section 94 (1) (b). AWE adjustment factor, for an amount, means the factor worked out for the amount in the way prescribed by regulation.

96 Amount of income replacement benefits—first payment (1) An injured person entitled to income replacement benefits is entitled to the amount each week worked out as follows for the first payment period: (P − A) × N A means the amount of the injured person’s post-injury earning capacity. N means— (a) if P is $100 AWE indexed or less—1.0; or (b) if P is more than $100 AWE indexed but less than $800 AWE indexed—1.0 + SG/100 ; or

(c) if P is $800 AWE indexed or more—0.95. Example—working out N, par (b) Kristin is injured in a motor accident on 1 March 2021. Because of her injuries, Kristin is unable to return to her part-time job as a teacher’s assistant at Lyneham Primary School for 8 weeks following the accident. Kristin does not perform any other paid work during the 8 weeks. Kristin gives the relevant insurer for the motor accident a letter from her employer stating that Kristin’s annual salary at the time of the motor accident was $36 500 and that Kristin had been a part-time employee at Lyneham Primary School for 18 months before the accident. The relevant insurer for the motor accident calculates Kristin’s gross income for the 52 weeks before the accident as follows: $36 500 x 364 Kristin’s gross income for the 52 weeks before the motor accident is $36 400 and her pre-injury income is $700. Kristin also gives the relevant insurer a copy of the last payslip she received from her employer before the motor accident, which shows that employer contributions were payable to her chosen superannuation fund for the 52 weeks before the motor accident. The superannuation charge number for the 2020-21 year is 9.5%. In working out the amount of income replacement benefits Kristin is entitled to each week, N is calculated as follows: N = 1 + 9.5 N is therefore 1.095. Using the formula set out in subsection (1), the amount of income replacement benefits payable to Kristen for each week during the first payment period after the motor accident that Kristin is entitled to income replacement benefits is calculated as follows: $700 x 1.095 = $766.50

P means— (a) if the injured person’s pre-injury income AWE adjusted is $2 250 AWE indexed or less—the amount of the injured person’s pre-injury income AWE adjusted; or (b) if the injured person’s pre-injury income AWE adjusted is more than $2 250 AWE indexed—$2 250 AWE indexed. SG, for the factor N, paragraph (b), means— (a) if superannuation contributions were paid or payable to a superannuation scheme on behalf of the injured person by an employer of the injured person during the 52 weeks before the motor accident—the superannuation guarantee charge number set out in the Superannuation Guarantee (Administration) Act 1992 (Cwlth), section 19 (2) for the year in which the contributions were paid or payable; or (b) if no superannuation contributions were paid or payable to a superannuation scheme on behalf of the injured person by an employer of the injured person during the 52 weeks before the motor accident—0.

97 Amount of income replacement benefits—second payment period (1) An injured person entitled to income replacement benefits is entitled to the amount each week worked out as follows for the second payment period: (P − A) × N A means the amount of the injured person’s post-injury earning capacity.

N means— (a) if P is $100 AWE indexed or less—1.0; or (b) if P is more than $100 AWE indexed but less than $800 AWE indexed—1.0 + SG/100; or (c) if P is at least $800 AWE indexed and not more than $1 000 AWE indexed—0.95; or (d) if P is more than $1 000 AWE indexed—0.8. P means— (a) if the injured person’s pre-injury income AWE adjusted is $2 250 AWE indexed or less—the amount of the injured person’s pre-injury income AWE adjusted; or (b) if the injured person’s pre-injury income AWE adjusted is more than $2 250 AWE indexed—$2 250 AWE indexed. SG, for the factor N, paragraph (b)—see section 96 (2).

98 Amount of income replacement benefits—injured person receiving workers compensation (1) This section applies if an injured person receives a weekly payment or other payment in relation to loss of income under a workers compensation scheme (a workers compensation payment) for any period to which the person is entitled to income replacement benefits. (2) For each week that the injured person receives the workers compensation payment, the amount of the income replacement benefit payment to which the person is entitled for that week is reduced by the amount of the workers compensation payment.

99 Payment of increments—apprentice, trainee or young (1) This section applies if a person injured in a motor accident is, on the date of the motor accident— (a) at least 15 years old but less than 21 years old; and (b) one of the following circumstances applies to the person: (i) the person is an apprentice; (ii) the person is employed under a contract of service for which the person is required to undergo training, instruction or examination for the purpose of becoming qualified in the occupation to which the contract relates; (iii) under the person’s conditions of employment, the person’s pre-injury weekly income would have increased if the person had continued in that employment because the (A) attained a particular age; or (B) completed a particular period of service or course of training. (2) For any week after the date of the motor accident in relation to which the person is entitled to an income replacement benefit payment, the payment must be calculated on the basis that the person’s pre-injury weekly income is the weekly income the person is likely to have been entitled to for that week. (3) The MAI guidelines may make provision in relation to the matters to be taken into account for determining the weekly income the person is likely to have been entitled to had the motor accident not happened and had the person continued in the employment.

conditions of employment, for an injured person, includes conditions applying to the person’s employment under an award or industrial agreement.

100 Injured person’s post-injury earning capacity (1) The relevant insurer for a motor accident may make a decision about an injured person’s post-injury earning capacity, including for the purpose of assessing the person’s fitness for work as a result of the person’s injury. (2) An injured person’s fitness for work must be determined having regard to the following: (a) the nature of the person’s injury and the likely process of recovery; (b) treatment and care needs, including the likelihood that treatment and care will enhance earning capacity and any temporary incapacity that may result from treatment and care; (c) any income the person receives from engaging in employment after the motor accident; (d) any fitness for work certificates the person provides. (3) The MAI guidelines may make provision for the matters to be taken into account by a relevant insurer and the procedures for determining an injured person’s post-injury earning capacity.

101 Income replacement benefits—period payable (a) a relevant insurer accepts liability under section 65 (Relevant insurer must decide liability for defined benefits) for an application for defined benefits for a person injured in a motor

(b) the injured person is entitled to income replacement benefits. (2) The period for which income replacement benefits are payable— (a) starts on the start date for the injured person; and (b) ends— (i) if a person to whom section 90 (Limited entitlement to income replacement benefits—pension-aged injured person) applies is in paid work on the date of the motor accident—2 years after the date of the motor accident; or (ii) in any other case— (A) 2 years after the person reaches the pension age; or (B) 5 years after the date of the motor accident. Note Pension age—see the dictionary. (3) The start date for an ongoing employee or fixed term contractor, self-employed person, casual worker or person receiving workers compensation is— of the motor accident; or (i) 28 days before the date of the late application; or the date of the motor accident. (4) The start date for a person on unpaid leave is— the person anticipated returning to paid work; or

(i) the later of the following: (A) the date the person anticipated returning to paid work; (B) 28 days before the date of the late application; or the date the person anticipated returning to paid work. (5) The start date for a person with a new work arrangement or a full-time student is— the person anticipated starting work with an employer or starting business as a self-employed person; or (i) the later of the following: (A) the date the person anticipated starting work with an employer or starting business as a self-employed person; (B) 28 days before the date of the late application; or the date the person anticipated starting work with an employer or starting business as a self-employed person. (6) The MAI guidelines may make provision for the kinds of circumstances that may be exceptional circumstances for subsections (3) to (5).

casual worker—see section 83 (2). full-time student—see section 87 (2). ongoing employee or fixed term contractor—see section 81 (2). person on unpaid leave—see section 85 (2). person receiving workers compensation—see section 84 (2). person with a new work arrangement—see section 86 (2). self-employed person—see section 82 (3).

102 Income replacement benefits—payable fortnightly (1) Income replacement benefit payments are payable to an injured person every 14 days after the start date for the injured person. start date, for an injured person, means the start date for the person worked out under section 101.

103 Income replacement benefits—interim weekly payments (a) a person injured in a motor accident is entitled to be paid income replacement benefits; and (b) the relevant insurer for the motor accident has asked the injured person for additional information to decide the amount of the income replacement benefit payment to which the person is entitled.

(2) The relevant insurer may pay the injured person an amount (an interim weekly payment) until whichever of the following happens first: (a) the person gives the insurer the additional information; (b) 28 days after the day the insurer asks for the additional information; (c) 13 weeks after the date of the motor accident. (3) The amount of the interim weekly payment is the percentage of $2 250 AWE indexed prescribed by regulation. (4) On request by the injured person, the relevant insurer may, but need not, pay the person a lower interim weekly payment. (5) An interim weekly payment is payable every 14 days after the start date for the injured person. (6) The MAI guidelines may make provision in relation to interim weekly payments. start date, for an injured person, means the start date for the injured person worked out under section 101.

Division 2.4.4 Income replacement benefits—injured person’s obligations

104 Requirement for evidence in relation to fitness for work etc (1) An injured person receiving income replacement benefit payments must give the relevant insurer for the motor accident the following information in relation to the period for which the person is receiving the payments: (a) a certificate in relation the person’s fitness for work (a fitness for work certificate) for the stated period; (b) if the person has previously given the insurer a fitness for work certificate—a declaration signed by or on behalf of the person about whether the person has undertaken any paid work since giving the insurer the previous fitness for work certificate (a work declaration). Note 1 For how documents may be given, see the Legislation Act, pt 19.5. Note 2 It is an offence to make a false or misleading statement, give false or (2) A fitness for work certificate has no effect to the extent that it applies to a period more than 13 weeks before the date of the certificate. (3) The MAI guidelines may make provision in relation to the following: (a) the form and contents of fitness for work certificates and work declarations; (b) who is to give a fitness for work certificate; (c) the period to which a fitness for work certificate may apply;

Division 2.4.4 Income replacement benefits—injured person’s obligations (d) when a fitness for work certificate or work declaration must be given; (e) the consequences of failing to give an insurer a fitness for work certificate or work declaration.

105 Suspension of benefit payments—failure to comply with request for assessment (1) This section applies if the relevant insurer for a motor accident makes a reasonable request that an injured person undergo a medical or other examination to assess the person’s fitness for work. (2) If the injured person fails without reasonable excuse to comply with the request, the relevant insurer may suspend the injured person’s benefit payments for the period that the failure to comply continues. Note An injured person’s entitlement to income replacement benefits may also be suspended if the person fails to undergo treatment and care stated in the person’s recovery plan (see s 124). (3) If the relevant insurer decides to suspend the injured person’s benefit payments, the insurer must give the injured person written notice (a suspension notice) stating— (b) the actions the injured person may take to avoid the benefit (4) A suspension notice must be given at least 2 weeks before the date the suspension takes effect.

(5) The MAI guidelines may make provision in relation to the following: (a) the conduct of medical and other examinations under this section; (b) the information a health practitioner may ask a person injured in a motor accident for in relation to a medical or other examination of the person by the health practitioner under this section; (c) the information a health practitioner may ask the relevant insurer for a motor accident in relation to a medical or other examination of a person injured in the motor accident by the health practitioner under this section; (d) the circumstances in which the relevant insurer for a motor accident may ask for a medical or other examination of a person injured in the motor accident under this section.

106 Offence—failure to notify changed circumstances (a) an injured person receives income replacement benefits from an (b) the insurer tells the person they must notify the insurer about any change in circumstances within the prescribed period after the change happens. (2) The injured person commits an offence if— (a) the person has a change in circumstances; and (b) the person fails to notify the insurer about the change in circumstances within the prescribed period after the change happens.

Division 2.4.4 Income replacement benefits—injured person’s obligations (3) A regulation may prescribe how notice under subsection (2) (b) must be given. change in circumstances—a person receiving income replacement benefits has a change in circumstances if— (a) the person returns to or starts paid work; or (b) if the person is in paid work—the amount of income the person receives for the work changes. prescribed period means— (a) 10 business days; or (b) if a regulation prescribes a different period—the different

107 Notice required to reduce or stop income replacement benefit payments (a) a person injured in a motor accident has been receiving income replacement benefit payments from an insurer for at least 4 weeks; and (b) the insurer decides to reduce or stop paying the payments because the person is no longer entitled to the payments or the amount of the payments. (2) This section does not apply in the following circumstances: (a) the insurer reduces or stops the income replacement benefit payments because the injured person returns to work or has a change in the amount of income the person receives from paid work;

(b) the income replacement benefit payments have been suspended under— (i) section 105 (Suspension of benefit payments—failure to comply with request for assessment); or (ii) section 121 (3) (Assessment of injured person’s injuries); or (iii) section 124A (Recovery plan—suspension of benefits); (c) the injured person’s most recent fitness for work certificate expires. (3) The insurer must give the injured person written notice, stating— (a) the reasons for the decision; and (b) the date the decision takes effect (being at least 2 weeks after the notice is given to the person); and (c) that the injured person may seek internal review of the decision under part 2.10 (Defined benefits—dispute resolution). (4) A notice under subsection (3) must be given at least 2 weeks before the insurer reduces or stops the injured person’s income replacement benefit payments. (5) If the insurer fails to give the injured person written notice of a decision to which this section applies in the way required by this section, the person may recover from the insurer the amount of any income replacement benefit payments not received as a result of the insurer’s decision.

Division 2.4.5 Income replacement benefits—miscellaneous Division 2.4.5 Income replacement benefits— 108 Income replacement benefits not commutable to lump sum (1) The relevant insurer for a motor accident must not commute income replacement benefits to which an injured person is, or may be, entitled to a lump sum payment. (2) This section is subject to section 184 (Lump sum payment of certain defined benefits—foreign nationals).

109 Employer reimbursement for paid leave (1) An injured person entitled to income replacement benefits may ask the relevant insurer for the motor accident to reimburse the person’s employer for the cost of leave payments made to the person for leave taken as a result of the person’s injury. (2) The amount reimbursed under subsection (1) must not be more than the amount of the income replacement benefit payments to which the injured person is entitled.

Preliminary Division 2.5.1 Part 2.5 Defined benefits—treatment and care benefits Division 2.5.1 Preliminary 110 Meaning of treatment and care treatment and care, of a person injured in a motor accident— (a) means any of the following: (i) medical treatment (including mental health treatment and pharmaceutical treatment); (ii) dental treatment; (iii) rehabilitation; (iv) ambulance transportation; (v) respite care; (vi) attendant care services; (vii) aids and appliances; (viii) prostheses; (ix) education and vocational training; (x) home and transport modification; (xi) workplace and educational facility modifications; (xii) any other kinds of treatment, care, support or services prescribed by regulation; but (b) does not include excluded treatment and care.

attendant care services, for a person injured in a motor accident, means services that aim to give the person assistance with everyday tasks. Examples • domestic services • home maintenance • nursing • personal assistance excluded treatment and care means treatment, care, support or services of a kind prescribed by regulation.

111 Meaning of rehabilitation rehabilitation, of a person injured in a motor accident, means the process of enabling or attempting to enable the person to attain and maintain— (a) the maximum level of independent living; and (b) full physical, mental, social and vocational ability; and (c) full inclusion and participation in all aspects of life. Division 2.5.2 Treatment and care benefits—

112 Who is entitled to treatment and care benefits? (1) A person injured in a motor accident is entitled to treatment and care benefits for the following: (a) treatment and care expenses;

Treatment and care benefits—entitlement Division 2.5.2 (b) domestic services expenses; (c) travel expenses. (a) section 45 (No entitlement—multiple driving offences); (b) section 47 (Entitlement limited—detainees and young detainees); (c) section 48 (No entitlement—serious offences); (d) section 49 (No entitlement—act of terrorism); (e) section 50 (Entitlement limited—workers compensation claimant); (f) section 116 (No entitlement to treatment and care benefits— allowable expenses already paid); (g) section 117 (No entitlement to treatment and care benefits— damages already paid); (h) section 118 (No entitlement to treatment and care benefits— LTCS scheme participant); (i) section 119 (Treatment and care benefits not payable in certain circumstances).

113 Meaning of treatment and care expenses—ch 2 treatment and care expenses, for a person injured in a motor accident— (a) means expenses incurred by the injured person in providing for the injured person’s treatment and care; but

(b) does not include expenses incurred for treatment and care— (i) that was not reasonable and necessary; or Note Section 120 deals with deciding whether treatment and care is reasonable and necessary. (ii) that did not relate to a personal injury sustained in the (iii) for which the injured person has not paid and is not liable to pay. Example—par (iii) nursing care or domestic services provided by a domestic partner or parent on a gratuitous basis

114 Meaning of domestic services expenses—pt 2.5 domestic services expenses, for a person injured in a motor accident, means the reasonable and necessary expenses incurred by the injured person in employing another person to provide domestic services to the injured person’s dependants if— (a) the injured person provided those domestic services to the dependants before the motor accident happened; and (b) the dependants are not able to undertake the domestic services because of their age, or physical or mental incapacity. Note 1 Section 128 sets out the period for which defined benefits to which an injured person is entitled are payable. Note 2 Defined benefits are not payable in relation to domestic services provided to a dependant of the injured person for which the injured person has not paid and is not liable to pay (see s 113 (b) (iii)).

Treatment and care benefits—entitlement Division 2.5.2 dependant, of a person injured in a motor accident, means any of the following who were wholly or partly dependent on the injured person when the motor accident happened: (a) a domestic partner of the injured person; (b) a parent, step-parent or grandparent of the injured person; (c) a child, step-child, grandchild or step-grandchild of the injured person; (d) a sibling, half-sibling or step-sibling of the injured person; (e) an uncle, aunt, niece or nephew of the injured person; (f) any other person who was a member of the injured person’s household when the motor accident happened; (g) an unborn child of the injured person at the time of the motor accident who is born after the accident.

115 Meaning of travel expenses—pt 2.5 travel expenses, for a person injured in a motor accident, means the reasonable and necessary travel and accommodation expenses incurred by the injured person and a parent or other carer accompanying the injured person in relation to travel undertaken to undergo treatment and care.

116 No entitlement to treatment and care benefits—allowable expenses already paid care benefits for allowable expenses if an insurer has already paid for the allowable expenses.

117 No entitlement to treatment and care benefits—damages already paid care benefits for the following expenses if an insurer has already paid for the expenses under a motor accident claim for the motor accident: (a) treatment and care expenses; (b) domestic services expenses; (c) travel expenses.

118 No entitlement to treatment and care benefits— LTCS scheme participant care benefits if the person is a participant in the LTCS scheme in relation to the injury. Note 1 Also, common law damages for treatment and care are not available for LTCS scheme participants (see s 250). Note 2 LTCS Act—see the dictionary.

119 Treatment and care benefits not payable in certain circumstances Treatment and care benefits are not payable to a person injured in a motor accident in relation to the following: (a) treatment and care that an insurer has paid for under an arrangement for direct payment with the provider of the (b) ambulance transportation, if the injured person is not liable for the cost of the transportation.

Treatment and care benefits—assessment Division 2.5.3

120 Deciding whether treatment and care is reasonable and necessary In deciding whether treatment and care for an injured person is reasonable and necessary, the relevant insurer for the motor accident must consider the following: (a) whether the treatment and care is reasonable and necessary in the circumstances; (b) whether the treatment and care— (i) is directly related to the person’s injury; and (ii) is appropriate for the injury; and (iii) will benefit the person; (c) the appropriateness of a provider of the treatment and care; (d) whether the treatment and care is cost effective; (e) the MAI guidelines. Division 2.5.3 Treatment and care benefits— assessment

121 Assessment of injured person’s injuries (1) The relevant insurer for a motor accident may require a person injured in the motor accident to attend a health practitioner for an assessment of the injured person’s needs for treatment and care, including a medical or other examination. Note 1 An injured person must include an authority to disclose personal health information with the person’s application—see s 57. Note 2 Authority to disclose personal health information—see s 54. Note 3 Health practitioner—see the Legislation Act, dictionary, pt 1. (2) The injured person must comply with any reasonable request made by the relevant insurer in relation to the assessment.

Division 2.5.3 Treatment and care benefits—assessment (3) If the injured person fails, without reasonable excuse, to comply with the relevant insurer’s request, the relevant insurer may suspend either or both of the following until the person complies with the request: (a) the person’s treatment and care benefits; (b) the person’s income replacement benefit payments. (4) If the relevant insurer decides to suspend the injured person’s treatment and care benefits and income replacement benefits, the insurer must give the injured person written notice (a suspension notice) stating— (b) the actions the injured person may take to avoid the benefits or (5) A suspension notice must be given at least 2 weeks before the date the suspension takes effect. (6) The MAI guidelines may make provision in relation to the conduct of assessments under this section.

Division 2.5.4 Treatment and care benefits— recovery plans

122 Meaning of recovery plan—pt 2.5 recovery plan, for an injured person, means a plan that— (a) is prepared by the relevant insurer for the motor accident; and (b) provides for the management and coordination of the injured person’s treatment and care.

123 Treatment and care benefits—recovery plan (a) the relevant insurer for a motor accident is satisfied a person injured in the motor accident is entitled to treatment and care (b) because of a personal injury the injured person sustained as a result of the motor accident, the injured person is unable to undertake the duties and activities the injured person participated in before the motor accident. (2) However, this section does not apply if the injured person is able to resume the duties and activities the injured person participated in before the motor accident within 28 days after receiving a receipt notice or a late receipt notice. (3) The relevant insurer must— (a) give the injured person and the injured person’s doctor a draft of a recovery plan proposed for the injured person; and (b) allow the injured person and the injured person’s doctor a reasonable opportunity to consider the draft.

(4) The relevant insurer may include in the recovery plan any recommendations by the injured person’s doctor for treatment and care that is reasonable and necessary. (5) The relevant insurer must give the injured person and the injured person’s doctor a final version of the recovery plan within 28 days (or any longer time stated in the MAI guidelines) after the day— (a) the relevant insurer gives the injured person a receipt notice or late receipt notice for the person’s application for defined benefits; or (b) if the injured person is admitted to hospital within 2 days after the motor accident happened and remains in hospital for a continuous period of at least 3 weeks—the person is discharged from hospital.

124 Recovery plan—content A recovery plan for a person injured in a motor accident must— (a) state the treatment and care approved by the relevant insurer as reasonable and necessary treatment and care for the injured (b) include a statement to the effect that the injured person’s entitlement to the following may be suspended if the injured person unreasonably fails to undergo the treatment and care stated in the recovery plan: (i) treatment and care benefits; (ii) income replacement benefits.

124A Recovery plan—suspension of benefits (1) If an injured person fails, without reasonable excuse, to undergo the treatment and care stated in the person’s recovery plan, the relevant insurer may suspend either or both of the following until the person undergoes the treatment and care: (a) the person’s treatment and care benefits; (b) the person’s income replacement benefit payments. (2) If the relevant insurer decides to suspend the injured person’s benefit or payment, the insurer must give the injured person written notice (a suspension notice) stating— (b) the actions the injured person may take to avoid the benefits or (3) A suspension notice must be given to the injured person at least 2 weeks before the date the suspension takes effect. (4) The MAI guidelines may provide for the matters that must be taken into consideration by an insurer in deciding to suspend an injured person’s benefits or payments.

125 Recovery plan—MAI guidelines The MAI guidelines may make provision in relation to recovery plans, including provision for the following: (a) the time within which a recovery plan must be given to an injured person and the injured person’s doctor;

(b) approval of treatment and care, and treatment and care expenses, under a recovery plan; (c) information to be considered by the relevant insurer for a motor accident when developing a recovery plan for an injured person; (d) the minimum requirements for a recovery plan; (e) the obligations an injured person has under a recovery plan; (f) the obligations the relevant insurer for a motor accident has under a recovery plan.

126 Recovery plan—treatment and care not in recovery plan (1) If the relevant insurer for a motor accident gives a person injured in the motor accident a recovery plan— (a) the injured person must apply to the relevant insurer for approval to undergo treatment and care that is not mentioned in the recovery plan; and (b) the relevant insurer is not liable for treatment and care expenses incurred in relation to treatment and care the injured person undergoes without the relevant insurer’s approval. (2) The relevant insurer may approve treatment and care that is not mentioned in the recovery plan if the relevant insurer is satisfied on reasonable grounds that the treatment and care— (a) is reasonable and necessary in the circumstances; and (b) will assist with the injured person’s recovery or management of the person’s injury.

127 Recovery plan—review (1) If the relevant insurer for a motor accident gives a person injured in the motor accident a recovery plan, the relevant insurer must review the recovery plan— (a) at least once every 13 weeks after the plan is given to the injured (b) if there is a material change in the person’s condition, circumstances or treatment outcomes. (2) The injured person— (a) must tell the relevant insurer as soon as practicable if the person is unable to comply with the person’s recovery plan; and (b) may ask the relevant insurer for a new recovery plan. (3) If the relevant insurer proposes to amend the recovery plan, the relevant insurer must give the injured person and the injured person’s doctor a reasonable opportunity to consider the proposed amendments. (4) The relevant insurer may include in the amended recovery plan any recommendations by the injured person’s doctor for treatment and care that is reasonable and necessary.

Division 2.5.5 Treatment and care benefits— payment

128 Treatment and care benefits—period payable (1) This section applies if a relevant insurer accepts liability under section 65 for an application for defined benefits. (2) The period for which treatment and care benefits are payable— (a) starts on— (i) the date of the motor accident, if— (A) the insurer accepts liability for an application made during the application period; or (B) the insurer accepts liability for a late application and is satisfied on reasonable grounds that there are exceptional circumstances justifying the earlier payment of treatment and care benefits; or (ii) if the insurer accepts liability for a late application and is not satisfied under paragraph (a) (i) (B)—the date that is 13 weeks before the date of the application; and (b) ends 5 years after the date of the motor accident. (3) The MAI guidelines may make provision for the kinds of circumstances that may be exceptional circumstances for subsection (2).

129 Payment of treatment and care benefits (1) The relevant insurer for a motor accident must pay the treatment and care expenses, domestic services expenses and travel expenses of an injured person entitled to treatment and care benefits. Note 1 Domestic services expenses—see s 114. Note 2 Travel expenses—see s 115.

Treatment and care benefits—payment Division 2.5.5 (2) The MAI guidelines may make provision in relation to verifying the injured person’s treatment and care expenses, domestic services expenses and travel expenses, including verifying that— (a) the expenses were incurred; and (b) the treatment and care for which the expenses were incurred was given; and (c) the injury for which the treatment and care was given resulted from the motor accident. (3) The MAI guidelines may make provision in relation to the circumstances in which the relevant insurer may make a payment under this section for treatment and care benefits before the expense for the benefit is incurred. treatment and care expenses, of person injured in a motor accident, means the expenses incurred by the person that are— (a) approved by the relevant insurer for the motor accident; or (b) set out in the person’s recovery plan.

130 Treatment and care benefits not commutable to lump sum (1) The relevant insurer for a motor accident must not commute treatment and care benefits to which an injured person is, or may be, entitled to a lump sum payment. (2) This section is subject to section 184 (Lump sum payment of certain defined benefits—foreign nationals).

131 Treatment and care benefits—MAI guidelines The MAI guidelines may make provision in relation to the following: (a) treatment and care that is considered reasonable and necessary for a person injured in a motor accident; (b) the maximum amount of defined benefits payable for stated (c) verifying that the treatment and care a person injured in a motor accident receives is reasonable and necessary; (d) verifying that the costs of treatment and care a person injured in a motor accident receives is reasonable and necessary; (e) the information a health practitioner may ask a person injured in a motor accident for in relation to an assessment of the person by the health practitioner under section 121 (Assessment of injured person’s injuries); (f) the information a health practitioner may ask the relevant insurer for a motor accident for in relation to an assessment of a person injured in the motor accident by the health practitioner under section 121; (g) the circumstances in which the relevant insurer for a motor accident may ask for a medical assessment of a person injured in the motor accident under section 121; (h) payment of expenses in relation to reasonable and necessary treatment and care provided by any of the following: (i) a public hospital; (ii) an ambulance service; (iii) a provider of a service relating to treatment and care that bulk bills for the service;

Treatment and care benefits—payment Division 2.5.5 (i) the principles to be followed by health practitioners in relation to the provision of treatment and care for people injured in motor accidents.

Part 2.6 Defined benefits—quality of life

132 Who is entitled to quality of life benefits? (1) A person injured in a motor accident is entitled to quality of life benefits if the personal injury sustained in the motor accident results in at least 5% WPI. (a) section 43 (Entitlement limited—uninsured motor vehicle); (b) section 44 (Entitlement limited—single driving offence); (c) section 45 (No entitlement—multiple driving offences); (d) section 46 (Entitlement limited—injuries self-inflicted); (e) section 48 (No entitlement—serious offences); (f) section 49 (No entitlement—act of terrorism); (g) section 50 (Entitlement limited—workers compensation claimant); (h) section 134 (No entitlement to quality of life benefits—foreign national living outside Australia); (i) section 135 (No entitlement to quality of life benefits—benefits already paid); (j) section 136 (No entitlement to quality of life benefits—damages already paid).

Quality of life benefits—entitlement Division 2.6.1

133 WPI taken to be 10% in certain circumstances (1) A person injured in a motor accident is taken to have a WPI of 10% for this Act if the person— (a) was a child on the date of the motor accident; and (b) 4 years and 6 months after the date of the motor accident— (i) is receiving treatment and care benefits in relation to the person’s injury and meets the requirements prescribed by regulation; or (ii) is a participant in the LTCS scheme in relation to the person’s injury. Note The MAI guidelines may make provision about the information that may be given to a person mentioned in s (1) about the time limits for making a motor accident claim and seeking legal advice about whether to make a motor accident claim (see s 52 (2) (f)). (2) Subsection (1) does not prevent a person mentioned in that subsection from making a quality of life benefits application under division 2.6.2 (Quality of life benefits—application). (3) If a WPI assessment is carried out in relation to an injured person mentioned in subsection (1), the assessment may increase, but not reduce, the injured person’s assessed WPI.

134 No entitlement to quality of life benefits—foreign national living outside Australia benefits if the injured person is a foreign national living permanently outside Australia.

135 No entitlement to quality of life benefits—benefits already paid benefits if the injured person has already received quality of life benefits in relation to the motor accident.

136 No entitlement to quality of life benefits—damages already paid benefits if the injured person has been awarded quality of life damages in a proceeding for a motor accident claim for the motor

137 Quality of life benefits application (1) A person may apply to the relevant insurer for a motor accident for quality of life benefits (a quality of life benefits application) if the insurer accepts, or is taken to have accepted, liability for defined benefits under section 65. (2) The quality of life benefits application must be made— (a) not earlier than 26 weeks after the date of the motor accident; and (b) not later than 4 years and 6 months after the date of the motor (3) A quality of life benefits application must— (a) request that the relevant insurer refer the injured person to an authorised IME provider for a WPI assessment; and (b) include the details required by the MAI guidelines; and

(c) be accompanied by the documents required by the MAI guidelines. (4) To remove any doubt, if a person makes a quality of life benefits application— (a) the relevant insurer must refer the injured person to an authorised IME provider for a first WPI assessment in accordance with this division; and Note If a person has injuries to more than 1 body system, the WPI assessment of each body system may be carried out by different medical examiners or combined in accordance with the WPI assessment guidelines (see s 151). (b) the injured person may arrange for a private medical examiner to carry out a second or subsequent WPI assessment only in accordance with section 158 (Second WPI report).

138 Insurer believes injuries stable and permanent impairment (b) reasonably believes that— (i) the person’s injuries have stabilised; and (ii) the person is likely to have a permanent impairment as a result of the injuries. IME provider for a WPI assessment.

139 Insurer believes injuries stable but no permanent impairment (b) reasonably believes that— (i) the person’s injuries have stabilised; but (ii) the person is not likely to have a permanent impairment as a result of the injuries. (2) The relevant insurer must give the injured person a written notice telling the person— (a) that the insurer believes— (i) the person’s injuries have stabilised; but (ii) the person is not likely to have a permanent impairment as a result of the injuries; and (b) the reasons for the belief; and (c) that the insurer will not refer the person for a WPI assessment unless the person— (i) confirms the request for the assessment; and (ii) pays an excess payment to the insurer for the assessment. (3) If the injured person confirms the request for a WPI assessment, in writing, and pays the excess payment, the relevant insurer must refer the person to an authorised IME provider for a WPI assessment. (4) If the injured person’s WPI is greater than 0%, the relevant insurer must reimburse the person for the amount of the excess payment. (5) The excess payment is the higher of— (a) $500 AWE indexed; and

(b) 25% of the fee payable for the WPI assessment.

140 Insurer believes injuries not stabilised—up to 4 years 6 months after motor accident (b) reasonably believes that the person’s injuries have not stabilised; and (c) it is less than 4 years and 6 months after the date of the motor (2) The relevant insurer must give the injured person a written notice telling the person— (a) that the insurer believes the person’s injuries have not stabilised; and (b) the reasons for the belief; and (c) that the insurer recommends that the WPI assessment be delayed until the injuries have stabilised; and (d) that the injured person may request a WPI assessment be carried out immediately but the insurer will not pay for a further assessment if the assessment confirms that person’s injuries have not stabilised. (3) If the injured person requests a WPI assessment be carried out immediately, the relevant insurer must refer the injured person to an authorised IME provider for a WPI assessment.

141 WPI assessment 4 years 6 months after motor accident (a) the relevant insurer for a motor accident receives a quality of life benefits application from a person injured in the accident and— (i) section 138 applies to the person; or (ii) section 140 applies to the person; or (iii) both of the following apply: (A) the person is receiving income replacement benefits or, because of the circumstances prescribed by regulation, would have been eligible to receive income replacement benefits; (B) the person’s injuries may have a significant occupational impact on the person’s ability to undertake employment; and (i) the person has not had a WPI assessment in relation to the injuries; or (ii) a WPI assessment has confirmed that the person’s injuries have not stabilised; and (c) it is 4 years and 6 months after the date of the motor accident. IME provider for a WPI assessment. (3) If the WPI assessment states that the injured person’s injuries have not stabilised— (a) the assessment must estimate the person’s WPI; and

(b) for a person who is not a person mentioned in subsection (4)— the estimated WPI is taken to be the person’s WPI. Note If more than 1 WPI assessment is carried out in relation to the injured person, payment of the assessments must be in accordance with the MAI guidelines (see s 147 (3)). (4) Subsections (5) and (6) apply if— (a) either of the following applies: (i) if separate reports from an independent medical examiner assess an injured person’s physical injuries and psychological injuries—the higher estimated WPI is at least 5%; (ii) if only 1 WPI report from an independent medical examiner assesses an injured person’s WPI—the estimated WPI is at least 5%; and (b) the injured person is entitled to make a motor accident claim in (5) The relevant insurer for the motor accident must, within 14 days after receiving the WPI report about the injured person, give the injured (a) including a copy of the report; and (b) telling the person that the person must, within 26 weeks after (i) accept the estimated WPI as the person’s WPI; or (ii) make a motor accident claim and apply to stay a proceeding on the claim until the person’s injuries have stabilised; and

(c) telling the person that if the person decides to take the action mentioned in paragraph (b) (ii)— (i) the person must notify the relevant insurer when the person’s injuries have stabilised; and (ii) that the relevant insurer will refer the person to an authorised IME provider for a second WPI assessment; and (iii) that the person is liable for the costs of the second WPI assessment; and (iv) that if the WPI report from the second WPI assessment assesses the person’s WPI as less than 10%, the person is not entitled to proceed with the motor accident claim and is liable for their own costs in relation to the claim. (6) The injured person must make a decision under subsection (5) within 26 weeks after the date the person is notified of the person’s estimated WPI. Note If the injured person’s estimated WPI is taken to be the person’s WPI, div 2.6.3 and ch 3 apply to the person. (7) If the injured person does not notify the insurer within the 26 weeks, the injured person is taken to have accepted the estimated WPI as the person’s WPI. (8) The relevant insurer must take all reasonable steps to notify the as stated in the notice under subsection (5) within the 26 weeks. 1 including information in the written notice under s (5) about the consequences of failing to notify the insurer within the 26 weeks (9) If the injured person refuses to have a WPI assessment, the person’s quality of life benefits application is taken to have been finally dealt with.

142 WPI assessment—injured person’s injuries stabilised (1) This section applies if an injured person to whom section 141 (4) applies— (a) makes a motor accident claim in relation to the motor accident; and (b) applies to stay a proceeding on the claim until the person’s injuries have stabilised. (2) The injured person must tell the relevant insurer for the motor accident, in writing, that the person’s injuries have stabilised. (3) The relevant insurer must refer the injured person to an authorised IME provider for a second WPI assessment. (4) The injured person is liable for the costs of the second WPI assessment. Note The IME provider must give the WPI report about the assessment to the relevant insurer (see s 152). (5) If the WPI report assesses the injured person’s WPI as 10% or more, the injured person is entitled to proceed with the motor accident (6) If the WPI report assesses the injured person’s WPI as less than 10%, the relevant insurer must, within 14 days after receiving the report, give the injured person a written notice— (a) stating that the person— (i) is not entitled to proceed with the motor accident claim; and (ii) is liable for their own costs in relation to the motor accident (iii) is not entitled to a further WPI assessment; and (iv) is not entitled to an SOI assessment; and

(c) telling the person that the person must, within 28 days after receiving the notice, notify the insurer, in writing, whether they accept the offer. (7) If the injured person does not notify the relevant insurer within the (8) The relevant insurer must take all reasonable steps to notify the as stated in the notice under subsection (6) within the 28 days. 1 including information in the written notice under s (6) about the consequences 2 sending the injured person a reminder notice before the end of the 28 days (9) If the injured person accepts (or is taken to accept) the offer— (b) the relevant insurer must pay to the person the amount of quality of life benefits payable for their WPI under division 2.6.4. Division 2.6.3 Quality of life benefits— WPI assessment

143 Meaning of WPI assessment WPI assessment, of a person injured in a motor accident, means an assessment to evaluate and report on the person’s injuries to determine the person’s WPI as a result of the injuries.

144 Meaning of WPI report WPI report means a written report, by an independent medical examiner or private medical examiner, of an injured person’s WPI assessment that— (a) states the examiner’s assessment of the injured person’s WPI; and (b) complies with the WPI assessment guidelines.

145 Meaning of private medical examiner—div 2.6.3 private medical examiner, for an injured person, means a doctor who— (a) meets the requirements under the WPI assessment guidelines to conduct WPI assessments; and (b) has qualifications and experience relevant to the nature of the injured person’s injuries.

146 WPI assessment guidelines (1) The MAI commission must make guidelines (the WPI assessment guidelines) for WPI assessments. (2) The WPI assessment guidelines— (a) must explain how a person’s whole person impairment is assessed; and (b) may state procedures and principles to be followed in making a WPI assessment including assessing whether— (i) a person’s injuries have stabilised; and

(ii) the person is likely to have a permanent impairment as a result of the injuries; and (c) may apply, adopt or incorporate a law of another jurisdiction or instrument as in force from time to time. Note A reference to an instrument includes a reference to a provision of an instrument (see Legislation Act, s 14 (2)). (3) The Legislation Act, section 47 (6) does not apply in relation to a law or instrument applied, adopted or incorporated under subsection (2) (c). Note A law or instrument applied, adopted or incorporated under s (2) (c) does not need to be notified under the Legislation Act because s 47 (6) does not apply (see Legislation Act, s 47 (7)). (4) The WPI assessment guidelines are a disallowable instrument.

147 Arrangement of WPI assessment (1) This section applies if an injured person is referred to an authorised IME provider for a WPI assessment under— (a) section 138 (Insurer believes injuries stable and permanent impairment); or (b) section 139 (Insurer believes injuries stable but no permanent impairment); or (c) section 140 (Insurer believes injuries not stabilised—up to 4 years 6 months after motor accident); or (d) section 141 (WPI assessment 4 years 6 months after motor accident); or (e) section 142 (WPI assessment—injured person’s injuries stabilised). (2) The IME provider must arrange for 1 or more independent medical examiners to carry out a WPI assessment of the injured person.

(3) The MAI guidelines may make provision in relation to the procedure for arranging a WPI assessment of an injured person, including— (a) selecting an IME provider; and (b) the time within which the assessment must be arranged; and (c) arrangements for payment of the assessment.

148 WPI assessment—provision of information (1) This section applies if an authorised IME provider arranges for an independent medical examiner to carry out a WPI assessment of an injured person. (2) The injured person must give the authorised IME provider and independent medical examiner— (a) all information in the injured person’s possession that is relevant to the WPI assessment; and (b) any other information the authorised IME provider or independent medical examiner reasonably requires for the WPI assessment. (3) The relevant insurer for the motor accident must give the authorised IME provider and independent medical examiner— (a) all information in the insurer’s possession that is relevant to the WPI assessment; and (b) any other information the authorised IME provider or independent medical examiner reasonably requires for the WPI assessment. (4) The information must be given to the authorised IME provider and independent medical examiner at least 10 days before the day the independent medical examiner is to carry out the WPI assessment.

(5) The independent medical examiner may decline to carry out the WPI assessment if the injured person or the insurer fails to give any information reasonably required by the authorised IME provider or independent medical examiner.

149 WPI assessment—WPI assessment guidelines A WPI assessment of an injured person must be carried out— (a) in accordance with the WPI assessment guidelines; and (b) by— (i) an independent medical examiner who is— (A) trained as required by the WPI assessment guidelines; and (B) selected by an authorised IME provider to conduct the assessment; or (ii) if the injured person may arrange for a private medical examiner to carry out a WPI assessment—a private medical examiner selected by the person.

150 WPI assessment—both physical and psychological injuries (1) This section applies if an injured person sustains both a physical injury and a primary psychological injury resulting from a motor (2) The injured person may request separate WPI assessments of— (a) the physical injury; and (b) the primary psychological injury. (3) However, the injured person may request a WPI assessment of the primary psychological injury only if the person has received— (a) mental health treatment for the injury; and

(b) a notice, in writing, from a psychiatrist or clinical psychologist that the psychiatrist or clinical psychologist reasonably believes the person is likely to have a permanent psychological injury resulting from the motor accident. (4) To remove any doubt— (a) a WPI assessment of a physical injury may take into account a secondary psychological injury; but (b) a WPI assessment of a primary psychological injury must not take into account a secondary psychological injury. (5) The relevant insurer for the motor accident is only liable for the costs of 1 WPI assessment for each kind of injury. primary psychological injury— (a) means an injury that is— (i) a psychological or psychiatric disorder, including the physiological effect of a psychological or psychiatric disorder on the nervous system, that results directly from a (ii) diagnosed by a psychiatrist or clinical psychologist; but (b) does not include a psychological or psychiatric disorder that results from a physical injury resulting from a motor accident. Example—psychological injury resulting from a motor accident post-traumatic stress disorder as a result of witnessing the motor accident secondary psychological injury means an injury that is— (a) a psychological or psychiatric disorder that results from a physical injury resulting from a motor accident; and

(b) diagnosed by a psychiatrist or clinical psychologist. Example—psychological injury that results from physical injury depression and anxiety as a result of ongoing pain from the physical injury

151 WPI assessment—multiple body systems affected (1) If an injured person has injuries to more than 1 body system— (a) a WPI assessment of each affected body system may be made; and (b) each WPI assessment may be carried out by a different independent medical examiner; and (c) the WPI assessments of each physical body system may be combined in accordance with the WPI assessment guidelines to decide the injured person’s WPI for the person’s physical (d) the WPI assessments for a primary psychological injury must be conducted in accordance with the WPI guidelines to decide the person’s WPI for their psychological injuries. injury, to a person’s body system, includes a primary psychological injury to the person. primary psychological injury—see section 150 (6).

152 WPI report to be prepared (1) An independent medical examiner who carries out a WPI assessment of an injured person must give a WPI report about the assessment to the IME provider who arranged the assessment. (2) The IME provider must give the WPI report to the relevant insurer for the motor accident.

(3) The WPI assessment guidelines may make provision for the requirements for a WPI report, including the time within which a WPI report must be given.

153 WPI—both physical and psychological injuries (a) a WPI assessment of an injured person’s physical injuries and psychological injuries has been carried out; and (b) the WPI for each kind of injury is assessed at more than 0%. (2) The relevant insurer for the motor accident may take into account the WPI for each kind of injury to determine the amount of quality of life benefits the insurer may offer the injured person.

154 WPI less than 5%—insurer may make offer (a) if separate WPI reports from an independent medical examiner injuries—the higher WPI assessment assesses the person’s WPI as less than 5%; or (b) if only 1 WPI report from an independent medical examiner assesses an injured person’s WPI—the person’s WPI is assessed as less than 5%. (2) The relevant insurer for the motor accident must give the injured

(b) if there are separate WPI reports for the person’s physical and psychological injuries, and the insurer considers that it is appropriate to make an offer to the person—offering the person the amount of quality of life benefits payable for their WPI under division 2.6.4 (Quality of life benefits—amount payable); and (3) The relevant insurer for the motor accident must give the notice to the (4) If the injured person does not notify the insurer, and give the insurer have accepted— (a) if the relevant insurer has made an offer—the offer; and (b) if the relevant insurer has not made an offer—each report stated in the notice under subsection (2).

(5) The relevant insurer must take all reasonable steps to notify the notice under subsection (2) within the 26 weeks. 1 including information in the written notice under s (2) about the consequences (6) If the injured person accepts (or is taken to accept) the offer or the report, the person’s application for quality of life benefits is taken to have been finally dealt with.

155 WPI 5% to 9%—insurer must make offer 5% but not more than 9%. (b) the person’s WPI is assessed as at least 5% but not more than 9%.

(5) If the injured person does not notify the insurer, and give the insurer have accepted the offer.

(6) The relevant insurer must take all reasonable steps to notify the notice under subsection (3) within the 26 weeks. 1 including information in the written notice under s (3) about the consequences (7) If the injured person accepts (or is taken to accept) the offer— (b) the amount of quality of life benefits payable for their WPI under division 2.6.4 must be paid by the relevant insurer to

156 WPI 10% or more—injured person not entitled to make motor accident claim 10%; but (c) the injured person is not entitled to make a motor accident claim (b) the person’s WPI is assessed as at least 10%; but

(c) the injured person is not entitled to make a motor accident claim (5) If the injured person does not notify the insurer, and give the insurer have accepted the offer.

(6) The relevant insurer must take all reasonable steps to notify the notice under subsection (3) within the 26 weeks. 1 including information in the written notice under s (3) about the consequences (7) If the injured person accepts (or is taken to accept) the offer— (b) the amount of quality of life benefits payable for their WPI under division 2.6.4 must be paid by the relevant insurer to

157 WPI 10% or more—injured person entitled to make motor accident claim 10%; and (c) the injured person is entitled to make a motor accident claim in (b) the person’s WPI is assessed as at least 10%; and

(c) the injured person is entitled to make a motor accident claim in (c) explaining the consequences of accepting the offer, including— (i) that the person is entitled to make a motor accident claim in relation to the motor accident; and (ii) that if the person accepts the offer and makes a motor accident claim, the person is not entitled to damages for loss of quality of life under chapter 5 (Motor accident injuries—common law damages); and (d) telling the person that the person must, by the due date—

(5) If the injured person accepts the offer— (a) the injured person’s application for quality of life benefits is taken to have been finally dealt with; and of quality of life benefits payable for their WPI under (6) If the injured person does not notify the insurer, and give the insurer the second WPI report, by the due date, the injured person’s— (a) application for quality of life benefits is taken to have been finally dealt with; and (b) entitlement to quality of life benefits in relation to the motor accident ends. (7) The relevant insurer must take all reasonable steps to notify the injured person about the due date and the consequences of failing to notify the insurer as stated in the notice under subsection (3) by the due date. 1 including information in the written notice under s (3) about the due date and the consequences of failing to notify the insurer by the due date 2 sending the injured person a reminder notice before the due date complying notice of claim—see section 257. due date means the later of— (a) 5 years after the date of the motor accident; and (b) 26 weeks after the person receives the notice; and

(c) if the injured person gives a complying notice of claim— 6 weeks after the date the claim is finally decided.