Insurer loses battle over Lifetime Care and Support Scheme eligibility

Date: Aug 18, 2018

When a person is injured in a motor vehicle accident, the insurer of the person at fault is responsible for medical costs incurred. In such a situation brought before the Supreme Court of New South Wales recently, an insurance provider initiated an argument about whether an injured man was eligible for care within the Lifetime Care and Support Scheme.

The injuries from the accident

In April 2010, the plaintiff suffered a severe injury to his right arm after a motor vehicle accident that was not his fault. The damage occurred mainly to the nerves between his hand and arm, causing weakness or loss of feeling and movement. Because of this injury, the plaintiff no longer had much function at all in his right arm, shoulder or hand. He reportedly had no feeling or use in his forearm, wrist, hand or fingers.

The insurer of the opposite party then applied for the plaintiff to be an interim patient in the Lifetime Care and Support Scheme, and the man was accepted.

However, because the man still had some function in his right arm, it was decided in April 2016 that he was actually not eligible to participate in the Scheme. The guidelines require either a shoulder disarticulation (when the entire arm is removed but there is still some shoulder movement) or a forequarter amputation (where there is no shoulder movement).

The decision that the man would be a patient of the Scheme, initially made by the Lifetime Care and Support Authority, was therefore reversed at this finding. The insurer then applied for a review of that decision, and a review panel then confirmed it.

The new proceedings from the insurer

After the reversal, the insurer initiated proceedings on grounds that the review panel had made a legal error. During the review, the insurer had requested that the Motor Accidents Compensation Act 1999 be taken into consideration. The panel then did not incorporate the procedures under that act. 

However, the judge ruled that the original injury assessment and eligibility requirements for the Scheme only needed to follow the Motor Accidents (Lifetime Care and Support) Act 2006. Thus, the review panel had not committed an error by failing to apply provisions of the 1999 Act.

The insurers summons for the appeal was dismissed.

If you have been injured in a motor vehicle accident, you may be eligible to receive compensation. Contact us today for a free consultation at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts or email your enquiry.