18/10/2024
THE MAI ACT NRMA ASSESSMENT CONCLUDES I'VE HAD A 5% QUALITY OF LIFE IMPACT DUE TO THE DEATH OF MY SON.
I have sent this letter to Andrew Barr and Chris Steel, and even if my appeal does not bring about a review of the legislation to benefit me, maybe in the future some changes will benefit others.
'Dear Minister Steel,
Thank you for your responses, but they do not address in anyway the fundamental flaws of the Motor Accident Injuries (MAI) scheme, some of which I advised you of in my letter dated the 21st August 2024. Until these flaws are addressed (and they have been called out for years by many others), Canberrans will not receive fairer, faster or more comprehensive support as you claim.
You referenced that the scheme was ‘chosen’ by a Citizens jury. I would suggest that stating it was a ‘democratic process’ does not in any way justify the scheme's blatant inadequacies and failings.
These were all raised through submissions and then completely ignored by your government as ACT Labor and ACT Greens pushed the legislation through the Assembly regardless.
In regard to the citizens’ jury; many concerns were raised by the territory’s legal practitioners as to its suitability. It was reported that the jury did not have access to balanced information nor had the relevant expertise, and were shepherded into a government-preferred option. You will also be aware that members of the jury resigned in protest.
Major concerns were raised by the ACT Law Society, the ACT Bar Association and many of Canberra’s legal practitioners as to ambiguity and complexity of the legislation that would penalise those who were wishing to make a claim for defined benefits or compensation who had been involved in a motor vehicle accident. This concern has become a reality for many people who have to engage with the scheme, including my family.
The overwhelming majority of submissions to the committee (69 of 72) were extremely critical of the proposed legislation and raised multiple red flags on its fairness, and empowerment to the insurers in the decision-making processes. The ACT Administrative Tribunal (ACAT) has found that the legislation is poorly drafted and has areas that are ambiguous. The silk and solicitors representing the NRMA in my own matter at the ACAT, also acknowledged in our discussions that the legislation introduced was poorly drafted, ambiguous and complex to understand for both those making claims, and for those managing them.
Yet the internal 3-year review claims that the legislation is acting as intended. That is even more concerning.
You suggest that the ‘Jury’ wanted to minimise as much as possible multiple Whole Person Impairment (WPI) assessments occurring to limit psychological harm to the claimant. There is no fact in this statement.
The only organisations who benefit by restricting the number of Whole Person
Impairments assessment that can be funded through the scheme are the insurers, who if a less than satisfactory WPI is given for a person, they know that individual will have to fund another assessment out of their own money.
I am going through this process now, and it will likely cost us somewhere between $4000 and $5000 for another 1-hour assessment.
How you can describe this burden as in any way reducing the psychological and physical burden on an injured people is beyond me.
In my first review, I was assigned an independent medical examiner (IME) by MLCOA, the sole provider in the ACT. I raised
concerns as to the assigned examiner, based on the very unfavourable online reviews of his performance both as an assessor and a treating psychiatrist. I requested the IME to assign a different assessor. They refused this request. I had no right of appeal. I turned up on time he was late, and arrogantly dismissive.
The Whole Person Impairment assessment uses the American Medical Association Guidelines Edition 5. This is the same as the Comcare scheme, and essentially designed for workplace injuries. You must be cognisant that the this framework for WPI assessment process for psychological injuries has been heavily criticised by Australian Association of Psychologist (AAP) and that our legislation in addressing psychological injuries has not kept pace. As per Executive Director of the AAP, "We do need much more work to acknowledge psychological hazards and to be treating people with the same level of
dignity and respect as we see with physical injuries."
In regards to the same AMA guidelines being applied under the Comcare scheme, it is reported that more is being spent on legal challenges by the insurer than actual WPI compensation to injured parties.
The MAI Act 2019 you helped introduce now also shares this shameful record.
As per the June 2024 Quarterly report, more has been spent on Insurer Investigation, Legal and Medico Legal ($3.4M) than paid out through Common Law claims ($3M). The scheme is estimated to have received over $700M in premiums yet only paid out $60M (Benefits and costs inclusive of insurer claimed costs) over 4 years and half years. Only 6 claims have been finalised for a WPI of 10 % or more (common law).
The Act Law Society warned in 2020 “the Law Society and the people of Canberra are left to wonder what the ultimate goal of the scheme is. Sadly, the losers will be the nearly 90% of under-compensated, un-represented victims of insurer profits.” The reality is that to date, only 0.29% of claims have settled under a common law claim. In reality, 99.7% of Canberrans under the scheme are under-compensated, under-represented and victims of unjustifiable insurer profits, with significant delays and push back on claims and reviews.
I refer you to the Canberra Times article form 9th September 2024 titled 'They broke me, they should fix me': Patients 'bullied' out of claims.
https://www.canberratimes.com.au/story/8753659/comcare-patients-bullied-out-of-claims-as-scheme-costs-rise
I also refer you to the ABC article, The ACT's Motor Accident Injuries insurance scheme leaving some car crash victims traumatised and out of pocket - ABC News.
https://www.abc.net.au/news/2024-07-08/act-government-car-crash-compensation-laws-difficult-to-navigate/103902466
It would appear a default behaviour of insurers under both schemes (Workers Comp and MAI) is to make it so difficult for you every step of the way that many people will simply give up.
I take exception to your statement “I appreciate that you are concerned with the outcome of your WPI assessment. This assessment is about your psychological injuries from the impact of your son’s death, not about compensation for Matthew’s death.”
I am not asking for compensation for my sons’ death. However, the impact of the psychological injuries I experienced and continue to be impacted from have resulted in reduced working hours. I'm also dealing with the ongoing criminal justice circus and legal processes that will continue for the foreseeable future. This has resulted in a significant loss of gross income of over $200,000 in the last two and a half years due to the psychological injuries suffered. The WPI assessment undertaken concludes that because I can “self-care” by being able to 'regularly wash and take care of personal hygiene, maintain some level of social and interpersonal relationships, travel independently and remain in employment' then the impairment on my life is now assessed at just 5%.
You have also advised compensation to relatives could be provided under the Civil Law (Wrongs) Act 2002 and this was not ruled out under the MAI Act. I have taken legal advice on this matter, and I can assure you this would not apply in our specific circumstances, as neither my personal salary continuances nor total permanent disability insurances would provide compensation for significant lost income due to the psychological injuries I have sustained. I believe you should check your formal responses for their accuracy in future. Additional issues that have been known about since the legislation was first proposed and still outstanding and never addressed can be found here:
https://actlawsociety.asn.au/article/legal-profession-strongly-opposes-proposed-changes-to-ctp-scheme
The listed thresholds for common law compensation are now extremely onerous and mean that hundreds of not at-fault injured people are barred from accessing compensation commensurate with the harm and damage they have suffered.
Even with the care services that can be provided, the insurer holds all the cards. I had been unable to source effective local psychology or psychiatric care in Canberra. My doctor therefore recommended physical therapy as an interim intervention. This claim has now been rejected by the insurer as a treatment of PTSD and depression as they say it is 'not reasonable and is unnecessary'. This is despite a significant body of research that supports physical therapy as a treatment.
Two and half years after my son’s death, only now are the insurers writing to my doctor and grief counsellor to see what they think is appropriate treatment (after having already rejected my claim). My doctor has recommended physical therapy in my fitness to work certificate.
NRMA – A Help Company. That’s the logo, but not the reality. NRMA should be ashamed of themselves claiming to care for claimants, while denying benefits and actually making an absolute fortune.
Chris, I write to you not just as a Minister, but as a new father. Can you imagine the complete horror and impact to the quality of your life and lifelong impairment in how you function if your own child was killed in a motor vehicle accident in which you and they were totally blameless? Can you imagine identifying them at a morgue, donating their organs, organising their funeral, having to phone around and tell your relatives, your friends, putting the lid on their coffin, lowering their coffin into the ground.?
Can you imagine the impact that every birthday, anniversary and milestone have on your mental health? Can you imagine facing their killer regularly in the courts? Can you imagine due to your psychological injury having significant time off work, reduced working hours and not having access to paid personal leave or holiday pay? Can you imagine undergoing an arbitrary assessment that states your whole person impairment is 5% and you are only entitled to under $8000 defined benefit and no compensation for future psychological distress or injury, experienced loss of income both past and future, or, because you happen to earn above the median Australian salary, having no access to proportionate income replacement?
I can assure you, the impact is daily, exhausting and at times crippling, and will last a lifetime. Yet under your legislation, a 1-hour assessment by an indifferent examiner, based on a criticised AMA guideline that is not trauma informed, is apparently wholly appropriate to determine that the whole person impairment occurred is minimal.
Have you discussed the scheme and its fairness with your parents, who also lost a child in a vehicular accident whilst on holiday?
Do you think they would agree that the impairment they have suffered equates to 5% - is this fair and reasonable based on a flawed guideline? Then add in a level of criminality to the event we experienced, a prolonged criminal justice circus that may go on for years, and a Government that has been in denial that there is anything wrong with either the criminal justice system or the CTP scheme, what do you think their response would be?
What impact do you think that would have on you, or your parents in our circumstances? 5%?
Fairer, faster and more comprehensive support? What kind of warped reality do you live in? On the one hand can justify paying a corrupt official due to procedural fairness, the former CIT CEO $373,061 salary per year whilst stood down for two years, and then $465,000 in a payout. Then you justify the extraordinary profits of the insurers who are doing to their level best not to pay out to impacted persons through the Motor Accident Injuries scheme you and Mr Barr introduced.
A government that is too arrogant to accept faults in its legislation and schemes, a government that no longer needs to listen to its community, is a government that is no longer fit to govern.
I can only hope your electorate in Murrumbidgee acts accordingly and agrees in the forthcoming election.
