A serious motor vehicle accident can destroy your life in an instant. When you or a loved one suffer serious or ‘catastrophic’ injuries on the road, the ramifications are immediate and devastating. Jeremy Roche, Partner at Attwood Marshall Lawyers and QLD Law Society Accredited Specialist in Personal Injury Law, specialises in catastrophic injury claims of all types. For those who suffer serious motor vehicle injuries, Jeremy knows how important it is to thoroughly consider your CTP claim and NIISQ entitlements – and when to opt out of the NIISQ.
CTP claims for personal injury caused in motor vehicle accidents
If you are injured in a motor vehicle accident in Queensland as a passenger or a driver due to the total or partial fault of another driver or vehicle owner, you can make a Compulsory Third Party (CTP) claim under the Motor Accidents Insurance Act 1994 (MAIA) to compensate you for your injuries and losses. This includes if you are hit by a car or vehicle as a pedestrian.
The claim is made against the CTP insurer of the at-fault vehicle, or against the Nominal Defendant if the at-fault vehicle is unregistered, uninsured, or unidentified. All vehicles are insured through the registration system we have in Australia, so it doesn’t matter which state or territory you have the accident in. Strict time limits apply to lodging the initial claim form and there are different time frames, depending on where the accident happened.
CTP claims involve one-off lump sum compensation which, subject to thresholds, often comprises of:
- General damages, pain and suffering, loss of amenities;
- Past and future treatment costs (e.g. medication, GP, physio, psychologist, specialists, surgery, rehabilitation, equipment, aids, prostheses, etc);
- Past and future income loss (including super where appropriate);
- Past and future care and assistance costs;
- A contribution towards the injured claimant’s legal costs.
Regrettably, we continue to see large numbers of claimants who have suffered “serious personal injury” or “catastrophic” injuries in motor accidents on our roads despite new safety measures being introduced, tougher penalties, and improved infrastructure.
Catastrophic injuries often occur in the context of high impact collisions, serious road accidents, motorcycle accidents, multiple vehicle pileups, speeding collisions, vehicle rollovers, or where pedestrians or bicyclists are hit at speed by a vehicle.
Those who suffer serious personal injury can access treatment, care and support from the National Injury Insurance Scheme (NIISQ), whilst also running their CTP claim.
Whilst a claimant is in receipt of NIISQ benefits, the CTP insurer will not pay for treatment or care, and any settlement of the CTP claim would exclude compensation for treatment and care funded by NIISQ.
What is NIISQ?
“NIISQ” is the National Injury Insurance Scheme (QLD).
NIISQ is equipped to deal with the complex treatment and rehabilitation needs of catastrophically injured claimants irrespective of whether the injured claimant was “at fault” for the accident. NIISQ applies only to motor vehicle accidents that occur in Queensland and has been in place since 1 July 2016. Other states and territories have equivalent schemes.
For eligible serious injury claimants, NIISQ funds the costs of medical treatment, equipment, aids, rehabilitation costs, medication prostheses, dental treatment, attendant care and support, respite care, educational and vocational training, home and transport modifications, ambulance costs.
Those with serious or catastrophic injuries are eligible to access NIISQ. Examples of “serious personal injury” include:
- Permanent spinal cord injuries
- Quadriplegia, tetraplegia, etc
- Traumatic brain injuries
- Limb amputations
- Severe burns
- Permanent blindness caused by trauma
To claim NIISQ support, you (or your support person) must lodge an application for “interim participation” for the NIISQ Agency to consider. The application must be lodged within 12 months, although there is some discretion for NISSQ to accept applications outside of this timeframe.
If the application is accepted, NIISQ will assume management and control of your reasonable medical treatment, rehabilitation, and care and support, and you will remain in the scheme for up to 2 years. During this time, NIISQ will liaise with you, your support person, lawyer, and each of your treatment providers to facilitate the provision of your treatment and support.
Within the 2-year period, NIISQ will re-assess you to determine whether you qualify as a “lifetime participant” with permanent access to NIISQ support for the rest of your life.
- If you do not qualify as a lifetime participant, then you will exit the NIISQ scheme and will be entitled to claim treatment and care costs as part of a lump sum claim from the CTP insurer (if available to you). You will not have to refund any amounts paid by NIISQ for treatment and care from your CTP claim.
- If you do qualify as a lifetime participant in NIISQ, you can elect to either:
- remain in the scheme to receive lifelong treatment and care benefits from NIISQ, with those items being excluded from your lump sum CTP claim; or
- opt out of the NIISQ scheme to pursue lump sum compensation for treatment and care through your CTP claim instead.
Opting out and taking a bigger CTP payout – a big decision
If you have been accepted as a lifetime NIISQ participant and wish to “opt out”, you must notify NIISQ and the CTP insurer of your decision by providing NIISQ with a “preservation notice” within 14 days of being accepted as a lifetime participant.
The primary benefit of ‘opting out’ is that you would be able to manage your own money and control your own future medical treatment and care decisions without requiring the intervention or prior approval of NIISQ or anyone else.
Your CTP claim would be worth more in lump sum compensation than NIISQ lifetime benefits because it includes past and future treatment, care and support costs in addition to other types of compensation (e.g. general damages, income loss).
The risk in opting out is that there is no ironclad guarantee that the compensation you obtain from your CTP claim will be sufficient to cover related costs over the rest of your life.
Deciding whether to remain a lifetime participant of NIISQ or to pursue your treatment and care costs through the CTP claim is an important and often complicated decision. Strict time limits apply to make such a decision and it is imperative that anyone in this situation obtain qualified legal advice from a specialist in catastrophic injury claims as early as possible to ensure the right decision is made. The consequences of getting this very important decision wrong could have a huge impact on the future management and treatment of your injuries, not to mention dealing with the ongoing costs if you opt out of the NIISQ.
TPD Claims and Insurance Claims
If you have suffered catastrophic injuries in a motor vehicle accident and are entitled to commence a CTP claim or obtain access to NIISQ benefits, you may also be entitled to pursue a Total and Permanent Disablement (TPD) claim depending on what insurance you may have available inside or outside your super and whether you meet the TPD definition. A successful TPD claim may provide you with the lump sum payment and the financial relief you need. In order to meet the required definition of total and permanent disablement (TPD), your treating doctors must be of the view that your injuries will prevent you from returning to the workforce in the future.
You may also have access to income protection payments to provide you with some level of income support whilst you are unable to work. Benefit periods can vary between income protection policies and can range from 12 months up to your 65th birthday providing you continue to be unable to work.
Attwood Marshall Lawyers – helping injured motorists for over 75 years
At Attwood Marshall Lawyers, we have an expert Compensation Law team with lawyers who specialise in TPD and insurance claims in addition to CTP motor vehicle compensation and all catastrophic injury claims, including WorkCover, public liability, and medical malpractice claims.
We offer free no obligation initial consultations to provide you with all the information that you need to understand what entitlements you may be able to access, options regarding your treatment, and how to get your claim underway. To discuss your circumstances, please contact our Compensation Law Department on 1800 621 071.