Personal injury claim process

This information is based on my experience after road traffic injury. The process for other injuries might be slightly different, but the principles remain the same.

I found whole personal injury (PI) claim process exceptionally stressful. QBE and their lawyers McInnes Wilson Lawyers did more that I could have imagined prolonging this process and make it more difficult and stressful. Unfortunately, personal injury lawyers, whom I hired to represent me made it even more stressful. As sad as it sounds it was deeply re-traumatising experience.

There were many things that can be done to make it different, but as I am still in the process the one thing that I can do now is to write about it while all my memories are fresh. Knowing about the process would have helped me a lot. As I am at late stages of my claim now, I will start from there and come back to earlier stages when I have time. This is only a part of of lessons I learned about what to do after road traffic injury.

This is based only on my experience. You process might be different, but I hope lessons from my journey still can help reducing stress.

Before you start

First I am sorry you got injured. Sadly, the personal injury claim process has been further re-traumatizing for me. I put into recommendations section important points from my experience that I do hope will help you to go through this process easier and you will get some help instead of abuse.

Recommendations

1. Find support. Please read about trauma and PTSD symptoms to learn about potential limitations that you may have while not even being aware of it. Trauma does reduce your capacity to think.
   1. Close person - partner of family member. Best option as you already know you can trust that person.
   2. Friend
   3. Support from various organizations. I wrote about some options I have explored in a ways to get help.
   4. I hope one day I will have resources that there will be direct help through this site.

Legal base

Every person on the road is covered by Compulsory Third Party (CTP) insurance. The system is slightly different in other states of Australia. CTP is required for any motor vehicle in NSW.

You are covered by CTP of vehicle that is at fault or the one that caused the injury. You are covered even if fault has not been determined by police. The only case when you are not covered is when collision is completely your fault, for example you did it on purpose.

You are covered no mater if live in NSW or Australia or not. The only thing that matters is the collision has to happen in NSW.

The laws have changed a bit since my injury, but most of the things stay the same. I think the last change was in 2017.

Lesson: the law is mostly reasonable, however in practice is not being obeyed.

Incident notification

Under old rules if you notify CTP insurer within 28 days after the road collision they are required to cover $5,000 of treatment expenses no matter of who's fault it was.

My case: QBE refused to pay a cent for any treatment.

Personal injury claim form

Personal Injury Claim form has to be submitted to the insurer within 6 month since the injury.

For injuries after 2017

From 2017-12-01 there are some changes in claim procedure.

There is government organisation CTP Assist that is meant to help you with CTP claims.

Lesson: I found that the answer you get depends on who answers your call or replies to your email. You may get a lot of misinformation. I found SIRA to be strongly favoring insurance at the expense of injured person.

Now you can apply online for personal injury benefits. I have not used it. However, this is where I would start if I need it to do it now.

Damages and Costs Calculations

PIC uses the following list to assess damages and cost of PI claim. For my case of damages and cost calculation check PIC assessment.

Damages

Damages as result of the injury.

1. Non-economic loss - you need to reach 10 whole person impairment threshold in order to be eligible for this part of compensation.
2. Economic losses
   1. Past loss of earnings
   2. Past superannuation
   3. Fox v Wood
   4. Future economic loss
   5. Future superannuation
   6. Past treatment
   7. Past gratuitous care
   8. Future gratuitous care
   9. Past paid care
   10. Future paid care
   11. Interest
   12. Other

Costs

Costs for incurred during claim process: legal fees, medical assessments and so on.

Collecting evidence

There is some information that needs to be provided with your claim. I found that involving solicitors made it more difficult rather than making it easier.

Collection of evidence was managed very poorly by all 3 solicitors I had for my claim. They introduced a lot of unnecessary stress and absurd time schedule, that resulted in poor collection of evidence.

1. No information was provided what kind of information was needed
2. No information what sources of evidence are considered to be reliable
3. No information what kind of documents I should collect
4. The request for information was given with absurdly short deadlines, while this information could have been easily collected earlier if I was properly informed
5. Statements. No clear guidance how they should be written. What should be included. How far to go into details. No examples.

Absurd deadlines

Solicitors would send to me the request of information when it is convenient for them. They had a lot of time to inform me what king of information will be needed. However, they have not done so. Instead they sent me request for information with very short notice.

1. Law Partners
2. Moya de Luca-Leonard. I contacted de Luca-Leonard in May 2020. Contract dated 2020-06-02. However, she informed about required information on 2021-07-20. Deadline 2021-07-30.
3. Peter Livers

Lawyers submissions

Lawyers submissions play a major role in personal injury claim process in the PIC. I do now know what would happen if you represent your self. However, in my case the PIC officials paid attention only to lawyers submissions. I noticed one tendency:

1. QBE solicitors submit some lies
2. my lawyers do not dispute it
3. PIC officials make decision based on these lies

Medical assessments

SIRA provides detailed information how injuries are assessed:

• Motor accident permanent impairment guidelines. Guidelines are based on AMA guidelines. Published as AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1993, ISBN: 9780899705538.
• Whole Permanent Impairment - workers compensation, but still has some useful information.

However, my experience shows, that what is written may be far from what is happening.

PIC provides short information about medical disputes pathways. My solicitors did not provide me with information what is going to happen and when. The sad part is that I was not able to read it myself. However, when I can, I will digest this information using my experience. I will come back to this later.

Assessors

SIRA maintains a list of health practitioners authorised to give evidence for personal injury assessment. My impression is that they represent either insurance companies or injured people. There is also third group: independent medical assessors that are assigned by PIC to provide independent medical assessment in case of dispute. I have seen 10 of them and I have very mixed experience: from very professional and accurate assessment to absurd lies that would require me to have teleportation device, time travel and other fantasy features to be make it physically possible.

I believe that such experience must be shared as it would have saved me from a lot of unnecessary suffering, so I am writing about my experience on this site and posting on other relevant sites.

Calculating whole person impairment

Unfortunately AMA Guides to the Evaluation of Permanent Impairment is not freely available and I doubt it would be an easy read. I am collecting some internet resources that can be useful to learn more about it:

• How To Calculate An Impairment Rating For A Traumatic Brain Injury
• Head Injury, Concussion - I recommend reading about traumatic head injury, especially concussion. It is scary, but if you already have it, knowing about it only might help. It took me 9 years to start reading about it. You may wonder why it took so long, well because I have it and it is impactful.

Disputes

You can contact PIC if you can not come to agreement with insurance you can lodge a dispute with PIC. In my case QBE was refusing to cover any expenses and to provide any compensation related to injury. If you lodge dispute online you get access to portal where you can provide all relevant information, tract progress and see insurance response.

See getting information if you do not have access to portal.

Settlement

Non Disclosure Agreement

I was asked by my solicitor Moya de Luca-Leonard to sign a non disclosure agreement. Shes told me that it is a part of a standard agreement for QBE. Later I got a copy of that so called standard agreement and there was no non disclosure requirement. It was added by my solicitor. Lucky I did not sign it. Unfortunately, there were other problems caused by my lawyers to my claim that I was not able to fix.

Assessment Conference

The compensation can be determined by independent assessor assigned by PIC at so called assessment conference (AC) if you can not come to agreement on compensation with insurance. The assessor is called member.

If you read PIC procedural directions assessment conference should be something similar. I have been in tribunal hearings few times before on smaller matters related to rent. I was left with very good impression. Tribunal member was objective and tried to select the most fair decision. I was hoping for something similar at PIC AC. It was nothing like it. The PIC member Macken at the start declared that his goal is to defend QBE insurance from personal injury claims and directed AC accordingly. His determination was unfair and full of factual errors. Please read further at PIC Assessment Conference 2023-06-28.

Recommendations

1. Have someone to be a witness of the assessment conference. Even better if there were several people. It can not be one of the witnesses for the claim as they will be asked to leave while people will be giving evidence. My assessment conference went severely against the rules and most of the [[PIC Assessment Conference 2023-06-28#Transcript, audio and video of the conference | record was deleted, so you need someone to witness it and be able to collaborate your story.
2. Have barrister present. He might not be as helpful as you might think, but there is some chance that he will be useful.

Payout

Medicare Compensation Recovery

I was notified that my solicitor got money to his bank account. I was surprised that it was way less than I have expected. He wrote to me that it is because Medicare withheld 10% until, they will resolve how much money I have to pay back to them. Previously, I was told by my solicitor that Medicare will deduct automatically the sum that is awarded by tribunal. So, now I am trying to find out what is an actual process.

My current understanding is that that insurance company transfers 10% of compensation to Medicare. Medicare deduct from it what is owned to them and returns the rest. There were 2 sums:

• about $10k that was listed in Medicare declaration
• about $5k was awarded by PIC member as the rest was disputed by insurance.

I find out that insurance is disputing medical expenses only at the tribunal. That was big shock for me. I tried to fix situation showing that all medical expenses are direct consequence of the injury, but PIC member ignored it saying that I forgot to duplicate sums for services. Now I do not know what I will be charged, but I hope solicitor told me truth as from his side it was very easy to get it covered by insurance. I have been asked to fill in 3 forms to recover money from Medicare.

This is the information I found on Medicare site:

• M0021 Medicare Compensation Recovery Third party authority (MO021). Use this form to give us permission to release your compensation information and to give permission to a third party to sign relevant documentation on your behalf.
• M0023 Medicare Compensation Recovery Section 23A statement form (MO023). Use this form to declare you received no benefits, or received no further benefits since your most recent expired notice, for your compensable injury or illness.
• M0026 Medicare Compensation Recovery Notice of past benefits request form (MO026). Use this form to get a copy of your Medicare history and care services statement, to find out what benefits and subsidies we will recover from your compensation.

Problems and complaints

The first think that I learned about insurance claim with QBE that nothing goes the way it is meant too. I was not able to get QBE to do the things they were required to do by law, and I could not find a way to complain about it. I am still struggling with it as my head shuts down and reading legal stuff is like hitting brick wall with my head.

I found one interesting page, that I should read when I am calmer (I may need many attempts and few months). It is on The Financial Rights Legal Centre (a community legal centre specialising in financial services) website but you may have a look at one way to complain to Australian Financial Complaints Authority (AFCA) about insurance company.

Australian Financial Complaints Authority

Australian Financial Complaints Authority (AFCA) is a free, and independent dispute resolution scheme functioning Australia wide. There are two ways to make a complaint:

• Download and will in PDF form
• Make a complaint online

Time limits

AFCA provides the following information:

How soon should I make a complaint to AFCA after I have become aware of an issue?

For most complaints, you should get in touch with us:

• within six years after you first became aware, or ‘should reasonably have become aware’, that you suffered the loss you want to complain about; or
• if you have already complained directly to your financial firm through its internal dispute resolution (IDR) process, and they replied, then you should complain to us within two years of getting this response.

Monetary limits

Monetary limits for general complaints are listed for general insurance complaints as follows: compensation amount limit per claim $631,500, Monetary restriction on AFCA's jurisdiction per claim - Amount claimed by claimant must not exceed $1,263,000.

Making a complaint online

Online portal has 6 steps.

Financial firm

QBE insurance

Type of service

My complaint relates to general insurance
Another type of general insurance

Main complaint

My claim was accepted but there is a dispute over the amount

Please provide a summary of your complaint. Include details of any other issues you wish to raise. If you have supporting documents, you will be able to attach them (up to 15 in total) in the final section of the form.

Form size 2000

I was cycling in Sydney on 2015-03-30. I was crossing an intersection on a green light. A car from oncoming traffic made a right turn straight into me. I was sure I was going to die when I saw a car accelerating towards me. I survived, but the fear stayed, among other things, like chronic pain. Since then, I am struggling with PTSD. Basically all my life was put on hold.
 
Having a claim with QBE was a re-traumatizing experience. It took more than 8 years to get some compensation, that is absurdly little. QBE dragged time and disregarded the law in ways I did not expect. They used incorrect information to minimize the compensation and significantly contributed to my mental health problems originally caused by road traffic injury.
 
I felt pressured to withdraw my claim starting from the first call from QBE after I notified them about the road collision.
They are required by law to respond about liability in 3 months (and there was no doubt about it), but they took 3 years to respond. Then there was a prolonged personal injury claim process that finished in 2023.
 
QBE never paid for any treatment. Instead, I was sent to different specialists with an empty promise that they will pay after assessment. I never got their psychologist report, but instead, later I was sent to another one.
 
The statements they provided (including their lawyers and specialists) break basic laws of physics: I would need a teleportation device and time travel for it to be true, other statements are just pure fiction. It significantly affected the compensation. The end result is very unfair. For example, for the loss of income for more than 8 years I got $100,000. In reality, this is less than what I would have earned in a year.
 
I suspect that collusion took place, but I believe it to be very difficult to prove. But, I do not see any other logical explanation. 
 
I am writing a complaint only now, because QBE dragged time, and till the assessment conference I had a chance of a reasonable outcome.

No reference

If you have lodged this complaint elsewhere, please tell us where

Communications with QBE

January 2016, I have asked one lawyer for advice what to do that QBE is ignoring me. He contacted QBE on the phone and QBE mentioned that they will respond about liability soon. QBE case manager actually called me about two months after the call from lawyer to QBE and she told me that they are finalising the decision and will contact me soon. Every time I spoke with someone from QBE (and most of the time it was same case manager) I felt completely hopeless. They been just promising to do what they are required to do and not doing it. I got so overwhelmed, that could not cope with it anymore and went into shut down mode. I got stuck at that time and it has been 8 years. After this call I have only very few fractured memories for a very long time.

Unfortunately, I waited for that response for another 2 years.

Government organizations

There are several government organizations involved in personal injury claim process in New South Whales and some Australia wide. To make it easier to identity I provide list of them:

State Insurance Regulatory Authority (SIRA)

https://www.sira.nsw.gov.au/ They regulate motor incidents CTP insurance, workers compensation insurance and the home building compensation scheme in NSW. They used to be in charge of whole process, but now you mostly will be dealing with PIC.

Personal Injury Commission (PIC)

https://www.pi.nsw.gov.au/ They resolve disputes between people injured in motor incidents and workplaces, employers and insurers in NSW.

Personal Injury Commission

PIC is meant to simplify claim process and help you to deal with it. However, because of many problems including corrupt official like member Macken, lack of transparency and long waiting times it becomes a major obstacle while seeking fair payout.

No transparency

You will not be allowed access to portal if you have legal representation. This gave opportunity for my lawyers to misrepresent me without me knowing about it. You will be at the mercy of your legal representation.

Not knowing state of your claim causes a lot of uncertainty and stress. It also made it impossible for me to notice problems on time and take action to fix it. Here are few examples:

1. My lawyers Law Partners not providing information that I have PTSD. If I had access to information that has been provided by Law Partners for my medical assessment most likely I would have realised that there is something wrong. Almost certainly I would have shown this information and discussed it with my psychologist and it would have helped me to avoid having terrible assessment by Mathew Jones.
2. My solicitor Moya de Luca-Leonard told me that I should not worry about fraudulent Vanitha Moodley report and it is not being used. If I have seen what information was submitted for medial panel assessment I would know that it is not true.
3. My solicitor Peter Livers withheld from and did not upload required information to PIC portal. These were huge red flags that I would have acted upon if I had this information.
4. There is also strange case when PIC member Hugh Macken requested information that was available on PIC portal. It was provided by QBE solicitor Timothy Ceballos (2023-03-14 PIC message - part 5 - Ceballos sent review panel certificate). I can not trust that this file was not modified knowing how many times Ceballos misquoted documents 2024-04-14 Complaint to OLSC about solicitor Timothy Ceballos.

PIC refusal to provide information

PIC refused to provide information on many occasions. One of the most impactful one was the refusal to provide access to portal.

Refusal to access portal

Lack of transparency was a huge problem and when assessment conference was approaching I had very bad intuition about it. PIC provides information on portal that has build in multi-user functionality with users having different levels of access. All dispute information is meant to go through portal. Accessing it would provide so needed level of transparency, but I was denied access by Dominic John, PIC dispute officer.

2023-06-13

I wrote to John asking for access to portal. At that time I was not away that Livers already was withholding some information or delays and problems uploading files.

1. I wrote that I am still represented by Peter Livers
2. I asked for access to the portal as it would allow me to see the current state of my application and properly prepare for assessment conference.

File: "2023-06-13 - 15 emails to from PIC - Re_ May I have access to portal APP-10268809.pdf"

2023-06-13

Instead of providing access John asked lawyers if I am still represented. This is very typical action by workers of problematic government agencies - pretend to be stupid by ignoring the information that has been provided.

File: "2023-06-14 PIC message - part 13 - John asked if I am still represented.pdf".

Accessing information

There are 3 ways to attempt to get information:

1. Phone PIC 1800 742 679 - while they are polite, some persistence will be needed to get information and there is good chance you will not get it. You may also get advice that will send you not in the right direction.
2. Write to PIC help@pi.nsw.gov.au. Sometimes they take some time before replying and in most of the times I had to write followup email.
3. Use GIPA request - if first two options fail, this is your last option to get required information.

Government Organisation Public Access

Government Organisation Public Access (GIPA) is a way to access information about you that is held by government organisations. I applied twice for it. First time with police. Second time with PIC. In both cases I did not get information I asked for, but I still got some useful information. Now I am preparing request for external review.

The Information and Privacy Commission NSW (IPC) is an independent statutory authority that administers legislation dealing with privacy and access to government held information in New South Wales. They have fact sheet about your rights under the GIPA act.

GIPA application

The first step is to send GIPA application to the organization that has the information you want to access. In my case it is PIC. PIC has a formal way to request information. There is no way to send request online, only by post. The part that I found confusing is application fee. It has 3 options:

1. By cash - but there is a request not to do it if you are sending requests by post (the only available option to send an application)
2. Cheque - banks no longer use it and you have to buy the check book separately
3. Money order - still available in the Post Office, but no longer recommended option.

I asked PIC on 2024-07-16: Are there other options? Like a bank account where to make a transfer, or a way to provide card details? Never got any reply. So, I made money order at post office and sent it with my application. It was accepted.

What if information was not provided

With the GIPA decision they also supply a fact sheet about your rights under GIPA act. You can apply for review. The deadline starts from the day the decision was given to you. It has information about 3 following options:

1. Internal review. Deadline 20 working days. The organisation has a right to accept the request out of time. $40 fee. I do not know how likely they are to change their decision. I think in case of PIC it is very unlikely.
2. External review by the Information Commissioner. Deadline 40 working days. No fee. Their decision is only recommendation and organization that has information may still not provide it.
3. External review by the NSW Civil and Administrative Tribunal (NCAT). Deadline 40 working days. 20 working days, if you have applied for review by the Information Commissioner, you have from being notified of the Information Commission’s review outcome to apply to NCAT. Fees apply. They may issue an order to provide the requested information.

I was still hoping that PIC will provide video file, after I received only audio file from PIC. So, I have been communicating with them, and they have been very slow to respond. This way I missed deadline for internal review.

Internal review

IPC provides a fact sheet about internal review. Previously I was required to fill in GIPA application form, make a payment and post it to given address, otherwise my application would not be accepted. I searched PIC site, but found none of this information about internal review. I asked PIC 3 questions:

1. The application form or confirmation that there is no form, but then I need to know what information I am required to provide.
2. Where do I send it to?
3. How to make a payment?

The closest form I could find on PIC site is this, but it does not seem to be correct.

External review by the Information Commissioner

I missed the 20 working days deadline to apply for internal review at PIC for my GIPA application: fact sheet, online form, pdf form. I am going to apply for external review.

I have not checked yet

https://www.police.nsw.gov.au/about_us/organisational_structure/units/professional_standards_command?fbclid=IwZXh0bgNhZW0CMTAAAR2bq6dZyTfYh9eED_MWEP_3IqYCX_Ljj_105NVusP1QshH1M8JkfJav_pM_aem_fNK_h9xmXhj_H9vkOqhjGg#:~:text=The%20Professional%20Standards%20Command%20

Acronyms

There are many acronyms used in various documents as it some organization titles are very long.

Compulsory Third Party (CTP) insurance

Provides cover for death and personal injury when you, or the person driving your vehicle, is at fault in a road collision.

American Medical Association (AMA)

https://www.ama-assn.org/about They define the Guides To The Evaluation of Permanent Impairment. Same guides are used for assessment of permanent impairment in Australia.