Fast Tracking Your TAC Serious Injury Application

filling an application

The Transport Accident Commission (TAC) introduced its ‘Supplementary Common Law Protocols’last year, as part of its strategy to get individuals back on the road to recovery sooner.In certain cases, these Protocols have streamlined the common law damages claims process through the implementation of ‘Serious Injury Fast Track Applications’.

When can a Serious Injury Fast Track Application be made?

These fast track applications can only be made if:

  1. You have sustained catastrophic or clearly demonstrable serious injuries as a result of a transport accident. Examples of these cases include where the individual has undergone an amputation, joint replacement, suffered significant spinal injuries, an acquired brain injury or gross scarring;
  2. Your legal representatives participate in the Protocols;
  3. You have not lodged an Impairment Benefit claim;
  4. You were not involved in a transport accident arising out of or in the course of employment; and
  5. It is clear that negligence can be proven against another party.

What is the usual process for pursuing common law damages?

An individual who has sustained a “serious” injury can pursue common law damages for pain and suffering, and economic loss.

Step One – Lodge a Serious Injury Application to the TAC for the purposes of obtaining a Serious Injury Certificate. This certificate is required to pursue common law damages.

The TAC’s usual timeframe for assessing Serious Injury Applications is45 days from receiving the application.

Step Two – Once this certificate is granted, it must be established that another party caused your injuries and was negligent.

Step Three – Arrange a conference with the TAC to resolve your common law claim. If your matter does not resolve, Court proceedings must be initiated.

How have Fast Track Applications streamlined the damages process?

For Fast Track Applications, the TAC will advise within 14 days of receiving the application whether a Serious Injury Certificate is granted.  Within 28 days of the certificate being granted, a conference must be arranged for the purposes of negotiating a lump sum.

These expedited applications now mean that catastrophically injured individuals receive access to restorative justice in a timely manner.

Maxiom Injury Lawyers are proud to participate in the TAC protocols. We will do everything we can for you to receive your lump sum compensation without any unnecessary delay. If you have been involved in a transport accident, please contact us on 1800 853 085 for advice about your rights and entitlements.

Personal Injury Claims: Impact of Pre-Existing Injuries

As human beings, it is common for us to have sustained pre-existing physical and or psychological injuries. However, these injuries do not preclude you from receiving compensation from a personal injury claim.

What is the threshold for an injury to be compensable?

You are entitled to compensation from Workcover if your employment was causative or was a ‘significant contributing factor’ to your injury. The following factors are taken into account when determining whether your employment was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury:

  1. The duration of your current employment;
  2. The nature of the work performed;
  3. The particular tasks of the employment;
  4. The probable development of the injury occurring if that employment had not taken place;
  5. The existence of any hereditary risks;
  6. Your lifestyle; and
  7. Your activities outside of the workplace.

Similarly, you are entitled to compensation from the TAC if the injuries you sustained in your transport accident is a cause to an aggravation of a pre-existing injury. The accident does not need to be the only cause or the dominant cause.

Whether you have injured yourself at work or on the road, if the accident has rendered a pre-existing injury symptomatic, then you are entitled to compensation. This will be the subject of medical opinion.

How does my pre-existing injury impact on my entitlement to damages?

In order to receive common law damages, you are required to prove that you have sustained a ‘serious injury’ and that another party is negligent.

The most common way in which individuals are awarded a Serious Injury Certificate for pain and suffering is by satisfying that the consequences from your physical injury are more than significant or marked, and at least very considerable. If you have suffered a psychiatric injury, you must establish that you suffer consequences from your injury which can be considered more than serious to the extent of being severe.

If you have suffered an aggravation of a pre-existing injury, you must establish that the additional impairment as a consequence of the aggravation meets the serious injury threshold. This is done by separating the consequences of your compensable injury from the pre-existing injury. A Judge determining your entitlement will perform an analysis of your life before and after your compensable injury.

The case of Noori v Topaz Fine Foods [2018] VSCA 323, considered the necessity to separate injuries for the purposes of determining whether an injury satisfied the serious injury threshold.

In Noori it was found that it was neither necessary nor appropriate to disentangle the consequences of the Plaintiff’s pre-existing psychiatric condition. The Court determined that whatever limitations had resulted from his pre-existing condition, he had at least been able to be gainfully employed up to that point.

If you have been injured at work or on the road, please contact us on 1800 853 085 or 0488 722 444 to discuss your potential entitlements. We are a specialist no win, no fee personal injury law firm committed to achieving the maximum compensation you deserve.

How are Pain and Suffering Damages Assessed in Personal Injury Claims?

Pain and suffering damages are designed to compensate individuals for their hurt and loss of enjoyment of life following an injury. Due to the individual circumstances of each case, there is no set formula by which these damages are assessed. However, a potential assessment can be drawn from other comparable cases.

The Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon sets out an analytical approach for assessing pain and suffering by identifying the individual’s experience of pain and the disabling effect of the pain.

Understandably, one’s experience of pain is subjective and an objective assessment of that subjective experience is required.The following factors will be largely considered when assessing pain and suffering:

  1. The age of the individual;
  2. The “consequences” as a result of the injuries;
  3. The treatmentundergone to mitigate the loss;
  4. The present treatment and medications taken to manage the injuries;
  5. Medical evidence regarding the debilitating nature of the injury;and
  6. Any pre-existing injuries or post-event injuries.

What consequences are considered when assessing pain and suffering?

Pain and suffering consequences are wide-ranging and can include:

  • Functional, cognitive and psychiatric limitations;
  • Sleep difficulty;
  • Restrictions with self-care;
  • Restrictions with household and domestic duties;
  • Impact on recreational and social activities;
  • Impact on relationships and intimacy;
  • Restrictions with capacity to work; and
  • Inability to continue with activities that previously provided enjoyment.

Recent pain and suffering damages awards

Duman v Kaini [2020] VCC 896 – A 53-year-old man involved in a transport accident developed major depressive disorder and chronic pain disorder. His condition necessitated transcranial magnetic stimulation treatment and electroconvulsive treatment. As a consequence of the accident, he developed interferences with his memory, concentration, motivation and sleep. He was awarded $300,000 for pain and suffering.

Di Pietro v Stockland Development Pty Ltd [2020] VCC 1869 –A 53-year-old worker was trimming a hedge when he stepped on a rock and fell. He sustained a serious lower back injury and underwent a microdiscectomy and laminectomy at the L5/S1 level. He was taking painkillers in the form of Tramadol, Lyrica and Ibuprofen. He was considered a stoic individual who learned to live with the pain. He was awarded $185,000 for pain and suffering.

Meech v Ballan & District Soldiers Memorial Bush Nursing Hospital & Hostel Inc [2020] VCC 854 – A 55-year-old woman slipped on a wet and slippery outdoor landing in the course of her employment.  She sustained a left knee injury and subsequently underwent a total left knee replacement surgery. Her treating orthopaedic surgeon opined that the fall may have aggravated underlying arthritis. Following her injury, she had difficulty kneeling, squatting, completing household and domestic chores and a number of recreational activities. She was awarded $110,000 for pain and suffering.

When am I entitled to pain and suffering damages?

Under the WorkCover and TAC schemes, you are entitled to pain and suffering damages if you have sustained a serious injury (significant injury for public liability claims) and negligence can be attributed to another party.

Under the WorkCover and TAC schemes, you are entitled to pain and suffering damages if you have sustained a serious injury (significant injury for public liability claims) and negligence can be attributed to another party.

Compensation following a Slip and Fall

Slipping and falling in a public place can be a particularly embarrassing experience. It is however the resulting injury which may leave you with permanent and significant consequences. Depending on the severity of your injury and how your injury was caused, you may be entitled to compensation.

What should I do following my fall?

  1. Seek medical attention – Call an ambulance if necessary and consult your doctor.
  2. Report the accident – Immediately report the accident to the manager of the building or business.
  3. Take photographs – Take photographs of the accident location and of your injuries.
  4. Obtain details of any witnesses – Obtain their contact details if a statement is needed in the future.

What are my potential entitlements?

  1. Pain and suffering damages – Please refer to the answer below, which outlinesthe requirements to pursue damages for your pain and suffering.
  2. Past and future medical and like expenses – Keep copies of any receipts for costs incurred as a result of your injury.
  3. Past and future loss of earnings damages – Create a logbook of all dates you were unable to work due to your injury.
  4. Gratuitous Care – You can claim unpaid domestic care, provided it has been for at least 6 months and 6 hours per week.

What do I have to prove for pain and suffering damages?

1. Significant Injury Threshold

You must satisfy that you have sustained a significant injury pursuant to the Wrongs Act 1958 (Vic). This means that you must establish a whole person impairment rating of 6% or more for physical injuries (except spinal injuries which is 5% or more), or 10% or more for psychiatric injuries.

Your level of impairment will be assessed in accordance with the Guides to the Evaluation of Permanent Impairment (4th edition) for physical injuries and the Guides to the Evaluation of Psychiatric Impairment for Clinicians for psychiatric injuries. The assessment of your impairment can only be performed once your condition is considered permanent and stable, and is usually performed after 12 months from the date of your injury.

2. Negligence

It must be established that the occupier breached its duty of care in failing to ensure that the premises were safe. The occupier’s breach can be proven in circumstances where it was reasonably foreseeable that their inaction or action unnecessarily exposed you to a risk of injury. In making this determination, the following can be considered:

a. Whether the occupier had identified the potential hazard.

b. What steps were taken by the occupier to eliminate the hazard.

c. Whether the occupier had notified people about the potential hazard, i.e. were warning signs erected.

d. Whether lighting around the accident location was poor.

How long do I have to makea claim?

Your claim must be lodged within three years from the date of the accident.

If you have suffered an injury following a slip and fall accident, please contact us on 1800 853 085.

Common Law Damages Update: Young worker with head injuries awarded $825,000

Maxiom’s Sach Fernando recently obtained a settlement of $825,000 plus costs plus retention of benefits for a 38 year old man with serious head injuries. Taking into account the benefits our client had already received by way of weekly payments, the settlement represents a total damages award of over $1million.


Background:

Our client was a 38 year old Concreter/Labourer. He was working in a bunker at a construction site, directly beneath a suspended hydraulic jack. He was responsible for attaching the jack to cables inside the bunker. His supervisor was working above him at ground level, operating the jack using a control panel. The two workers were attending to the ‘stressing’ of cables inside concrete pylons, prior to the pouring of concrete.

As our client was working, he pushed the jack away from him with his hand, and as he turned back around, he was struck in the head by the jack (“the workplace incident”).

Injuries:
As a result of the workplace incident our client sustained significant personal injuries,
including:

  1. An acquired Traumatic Brain Injury;
  2. Post-Concussion Syndrome;
  3. Post-Traumatic Migraine headaches;
  4. Injuries to the Eyes, such as poor vision, visual disturbance, diplopia, double vision, convergence spasm; and
  5. A range of psychiatric illnesses and disorders, including Severe Depression, and Adjustment Disorder with depression and anxious mood.

Pain and Suffering Consequences:
Our client suffered the following consequences as a result of his injuries:

  1. Chronic migraines;
  2. Phonophobia (the sensitivity to loud noises) where he would suffer from headaches in noisy environments. As a result of this, he would often react angrily when his children laughed, cried or shouted;
  3. Photophobia (sensitivity to light) where direct sunlight or glare would give him headaches, necessitating special tinted glasses;
  4. Convergence spasm which caused one eye to drift in a separate direction from the other;
  5. A requirement for regular Botox treatment from a neurologist;
  6. An impact on his marriage and family life. His wife has become his permanent carer and he is unable to contribute to any household chores;
  7. Weight gain of between 30-40kg since injury due to injuries and immobility;
  8. Walking, he requires a walking stick to get around due to loss of balance;
  9. Poor concentration / memory –Reading, concentrating, memory and focus was poor;
  10. Difficulty and inability to perform a range of recreational pursuits including camping, hunting, fishing, camping and bike riding;
  11. Sleep – It would take a considerably long time to fall sleep due to persistent migraines;
  12. Nightmares and flashbacks to the incident; and
  13. Depression and anxiety with feelings of helplessness, uselessness and suicidal thoughts.

Work Capacity:
The medical evidence was unanimous in finding that our client’s capacity for work was negligible.

Negligence:
We argued that the employer was negligent in failing to mandate the wearing of helmets or hardhats, particularly when workers were working beneath a moving hydraulic jack. The employer was aware that employees were not wearing hardhats in a bunker, particularly during warm weather.

Following our client’s incident, the employer did mandate the use of hardhats whilst working in the bunker and shortened the hydraulic jack.

We further argued that the employer:

  1. Failed to devise, implement and maintain safe systems of work with respect to the hydraulic jack and with working in the bunker below the hydraulic jack;
  2. Failed to provide adequate supervision of our client in the performance of his work duties;
  3. Failed to provide training to our client, particularly with respect to safely operating or safely working with and/or below the hydraulic jack;
  4. Failed to ensure that the hydraulic jack had appropriate safety features, guards and/or warnings systems to prevent any contact with our client whilst he was working below and/or in close proximity to it; and
  5. Did not require any personal protective equipment to be worn by our client to work at the premises and with/below the hydraulic jack, including safety helmets and/or hard hats.

If you have been injured at work, we can help. Please call Sach Fernando on 1800 85 30 85 or 0488 722 444 for an obligation free discussion about your case.

$800,000 awarded to injured motorcyclist

A 47 year old former professional marathon runner has been awarded $800,000 following a motorbike collision that resulted in serious injuries, including an above knee amputation of his right leg. The victim was riding his motorbike when an ice affected driver collided with him, throwing him off his bike into a ditch.

The victim was airlifted to Alfred Hospital where emergency physicians, surgeons, nurses, anaesthetists and radiologists worked together in unison to successfully resuscitate him.

Injury Law Specialist, Sach Fernando, from Maxiom Injury Lawyers said that it was an honour to have represented the injured motorbike rider.

“He really is an inspiration. His survival is testament to the great work of Alfred’s trauma unit. His commitment to recovering from this horrific accident is truly inspirational and he is more than deserving of the award of damages he recently received”.

Mr Fernando also said that more needs to be done on Victorian roads to make them safer for all road users, including the installation of more safety barriers, particularly in high-risk areas. 

The other driver involved in the collision was sentenced to 6 years in prison with a non-parole period of 3 years.

If you are injured call Maxiom Injury Lawyers on 1800 85 30 85.

Technology and the Law: Finding Metadata

I still get nightmares about the old dial up tone and I won’t long forget the shrill voices of my parents screaming at my siblings and I to get off the web so they could use the landline, however, I’ve been pretty lucky to witness the expansive growth of technology throughout my formative years.


I am categorised in the generation that knows everything about technology but what I have come to realise is that I might know a lot about how to operate technology, but I have little to no idea how it actually operates.
Take metadata, for example. Prior to starting my career at Maxiom Injury Lawyers in 2020, I didn’t have a clue what it meant. Now that I do, I can tell you I’ve never metadata I didn’t like.

What is Metadata?

Urban dictionary will tell you it is a fancy word for “information” invented by tech folks to make their jobs sound harder than they really are.

It is really just a set of data that describes and gives information about other data. Much like the iceberg that sank the titanic, what you see on the surface rarely indicates what is underneath.

Metadata and Personal Injury Litigation

As a personal injury lawyer, I review thousands of documents during the process of discovery. From time to time, some documents make me pause and question its authenticity.

Metadata only came onto my radar when I had a gut feeling something was NQR in one of our Workcover matters. Our client’s PIAWE (pre-injury average weekly earnings) calculation was incorrect as it didn’t include overtime. The Workcover Insurer advised that our client’s employer had provided employees with a notice five years ago which outlined that all overtime was cancelled and thus the calculation of overtime ought not be included.

As is the usual case, we had very different instructions. Our client was adamant he had never received such a notice, so we formally requested a copy from his employer. Once we received the notice, our client’s instructions didn’t change.  Despite having confirmation that the notice existed in front of me, I took my client’s word and decided to investigate.

Through my research, I found that there was a way to view the document history by simply checking the metadata. As you might’ve guessed, when I checked out the metadata of the document, I quickly realised that the document was created and amended that day, and not some five years ago.  

When we informed the insurer of our investigations, the argument disappeared faster than Harold Holt on a hot summer’s day down the coast, and our client’s PIAWE was calculated to correctly include the overtime allowances he was entitled to.

Technology has a major role to play in the way do business in law. You can’t always take someone’s word in real life and the same principles apply in the realm of technology. There is always more beneath the surface.

If everything were that simple, I might’ve accepted the email offers of various Princes to inherit their fortunes simply by providing my name, date of birth, bank details and TFN.

If you’ve made it this far, read on for a quick step-by-step guide on how to check the metadata of PDF documents:

STEP ONE:

Open the PDF File.

STEP TWO:

Select ‘File’ -> Properties.

STEP THREE:

Select ‘Additional Metadata’

STEP FOUR: Select ‘Description’. Here you will be able to see when the Document was first created and when/if it has been modified.

STEP FIVE:

Select ‘Advanced’ to see additional modification details.

Michaela Kennedy is a personal injury lawyer at Maxiom Injury Lawyers. Please contact us on 1800 85 30 85 or 0488 722 444 if we can assist with your personal injury claim.

MK Headshot - White

Finding my place in Law

I completed my schooling years at an Islamic school in Springvale and subsequently attained a double degree, Bachelor of Laws and Bachelor of Arts (Majoring in International Relations) at Deakin University. As part of my Law degree, I completed a unit in Personal Injuries and this enlivened my interest in the jurisdiction.

I have aspired to be a lawyer ever since the age of ten when I witnessed the most marginalised members in my community suffer due to a lack of awareness of their legal rights. I felt that becoming a lawyer would give me the necessary qualifications to help these people. As a lawyer, I have not only found a career that allows me to be an advocate for the disadvantaged, but I have also found a career where I am constantly learning and developing my skills.

For me, the real journey has been finding “my place” in law.

During my penultimate year at university, I was fortunate to secure an administration role at a large Plaintiff law firm. I was soon promoted to a paralegal position and in 2018 accepted into that firm’s graduate lawyer traineeship program. I was able to participate in learning and development activities and observe senior lawyers and barristers negotiate.  This experience provided me with a strong foundation to begin my journey as a Lawyer.

Whilst legal education and internships help develop the necessary technical skills, it was important for me to find a supportive mentor, one that would afford me opportunities, value my opinion and share their wealth of experience.

In July 2020 I saw an advertisement for an opportunity to work as a Lawyer at Maxiom Injury Lawyers. Maxiom was a NewLaw firm that I had observed to be agile and flexible, and disrupting the traditional model of a personal injury law firm. My research found that they were receiving great reviews from  clients, and this feedback demonstrated a very empathetic approach to the practice of law . The firm was founded by Sach Fernando, an Accredited Injury Law Specialist, whose career journey I had observed from afar. The opportunity arose during Melbourne’s lockdowns where most were concerned for their job security. Nonetheless, it was an opportunity I identified as one that would afford me valuable mentoring and allow me to grow my legal skills within a jurisdiction I am passionate about. Ultimately, the determining factor for me was the Principal Lawyer for whom I would be working with.

Having completed nearly twelve months at Maxiom, I can confidently say that I made the right decision. I have had significant mentoring, opportunities to present at conferences, negotiate directly with senior Defendant lawyers and to contribute to a positive culture at a firm whose values align with mine.

In addition to a fantastic mentor whose values align with mine, I have found my place where I am able to make a significant impact to the lives of my clients. In a boutique law firm, your efforts and contribution are valued. Everything you do makes a direct impact – to the firm itself and to the team you work with. When a case is resolved, your efforts are recognised and celebrated. I feel a great sense of pride knowing that my legal skills contributed to the outcome of my client’s case. Being able to see reward for my effort provides a sense of meaning and purpose. Similarly, I am an integral member of the team and have the opportunity to contribute to the growth of the firm including its culture.

Finding the right firm may take some trial and error, however I have discovered that it is the people at that firm and most importantly your mentor, that holds the key to your ultimate career success.

Zahida Popal

Solicitor at Maxiom Injury Lawyers

Zahida Popal

Common Law Damages Update: Plaintiff awarded $350,000 for spinal injuries

Maxiom’s Shane Don and Sach Fernando recently obtained an award of $350,000 on a Pain and Suffering basis for a man who sustained a serious lower back injury. The facts of this case are outlined below.

The Incident:

The Plaintiff was a 66-year-old man who was employed by the Defendant as a Sales Representative and Battery Delivery Person. Throughout the course of his employment, he was required to load his delivery van with batteries weighing up to 45 kilograms. He had to get inside the van and walk over the batteries sometimes to get them in the correct position.

In May 2010, whilst loading batteries inside the back of the van, the Plaintiff slipped and fell off a battery and landed on his right side.

As a result of the incident, the Plaintiff sustained intervertebral disc disruption at L4/5 and L5/S1, right leg sciatica, transient cauda-equina syndrome and soft tissue injuries to his right shoulder, right hip and right ankle.

Treatment:

The Plaintiff underwent extensive treatment, listed as follows:

  1. In September 2010, he had a right hip injection.
  2. In December 2010, he had an epidural steroid injection into his back.
  3. In August 2011, he underwent decompression of his lumbar spine at L4/5 and L5/S1.
  4. In August 2011, he underwent a further laminectomy surgery of his lower back.
  5. In December 2011, he underwent a posterior lumbar interbody fusion at L4/5 and L5/S1.
  6. In March 2016, he underwent removal of lumbar instrumentation and further decompression of spine, particularly on the right at L5/S1.
  7. In April 2018, he underwent an open removal of foreign body/hypodermic needle operation.
  8. In 2019, he completed a Pain Management Program.

Despite the treatment, the Plaintiff’s doctors opined that he had developed chronic lower back pain and that his prognosis is poor.

The Proceedings:

The Plaintiff had reached the age of retirement, which meant that he no longer had an entitlement to weekly payments.

The Plaintiff was granted leave to bring common law proceedings for the recovery of pain and suffering damages.

Pain and Suffering Consequences:

The Plaintiff’s consequences included, but were not limited to:

  1. Restriction in walking with the aid of crutches.
  2. It is almost impossible for him to do any exercise now and since his injury he had gained over 40 kilograms.
  3. His injuries have necessitated home modifications including ergonomic chairs, installation of a walk-in shower and handrails.
  4. Due to the cauda equina syndrome and disruptions in his lower extremities, he is required to wear adult nappies.
  5. He was no longer able to ride motorbikes as he did prior to the accident.

Negligence:

The case against the Defendant was primarily that he was required to carry out hazardous manual handling duties in circumstances where there as a reasonably foreseeable risk of injury. In addition, we submitted that:

  1. The Defendant failed to provide and maintain a safe system of work;
  2. The Defendant failed to provide the Plaintiff with proper instructions, supervision and training;
  3. The Defendant failed to take any reasonable steps to reduce the risk of injury, so far as was reasonably practicable; and
  4. Prior to the incident, the Plaintiff had identified a reasonably practicable alternative to the Defendant’s system of work, by placing a chipboard over the batteries to provide a stable surface on which to walk. The Defendant had instructed the Plaintiff to remove the chip board.

If you have been injured at work, we can help. Please call us on 1800 85 30 85 or 0488 722 444 for an obligation free discussion of your case.

Sach Fernando Upper Portrait
Shane Don Laywers

Personal injury claims and the NDIA

women in wheelchair

By: Shane Don

Who is the NDIA?

The National Disability Insurance Agency (NDIA) is a Commonwealth statutory agency that administers the National Disability Insurance Scheme (NDIS) to Australians with permanent disability.

Am I eligible for NDIS support?

In order to become a participant of the NDIS, you must:

  1. Be under 65 when you make the request for access; and
  2. Reside in Australia and be an Australian citizen, permanent resident or holder of a special visa category; and
  3. Establish that you have either a ‘permanent disability requirement’ or an ‘early intervention requirement’.

Disability requirements include a disability attributable to one or more of an intellectual, cognitive, neurological, sensory, physical or psychiatric condition.

In order to be granted access to the provision of early intervention, the NDIA must be satisfied that it will likely reduce your future needs for supports and that the early intervention will mitigate, alleviate or prevent the deterioration of your functional capacity.

Should I apply for NDIS support if I am already receiving funding from another statutory scheme?

The objective of the NDIS has been to address the imbalance between those with compensable and non-compensable disabilities. It was designed to complement and not replace existing statutory schemes, by facilitating a nationally consistent approach to the funding of reasonable and necessary supports.

It is important to note that most statutory schemes fund on a ‘as needs’ basis. This means that you will only receive funding if it is requested and approved. Further, the legislated funding intent of Victorian statutory schemes do not consider an individual’s goals or aspirations. The NDIS, in contrast, allows participants to choose which supports and services require ongoing funding, from an individually allocated budget based on their goals and social participant objectives.

Accordingly, if you find that you are not receiving adequate or appropriate funding from your existing statutory scheme for your medical and like expenses, it is worth considering access to the NDIS.

When applying for access to the NDIS, you must inform the NDIA of any current compensation claim on foot.

Do I have to pay the NDIA back if my compensation claim settles?

Pursuant to sections 106 or 107 of the National Disability Insurance Scheme Act 2013 (Cth), the NDIA can recover the sum of past NDIS amounts from your common law damages that includes past medical and like expenses or past domestic care and assistance. Prior to settlement, the NDIA will invariably issue a ‘Preliminary Notice’ to the potential compensation payer or insurer to put them on notice of their potential liability.

This situation arises in circumstances where your common law claim finalises and you have been in receipt of NDIS supports for your personal injury related impairment/s. The NDIA calculates the recoverable amount from the date of access to the NDIS to the day before the settlement/judgement.

In Victoria, common law damages that include components for past medical and like expenses or past domestic care and assistance will only be in public liability or medical negligence matters.

Can I continue to receive NDIS support after my compensation claim settles?

Yes. However, if you receive ongoing supports from the NDIA subsequent to receiving compensation, a ‘Compensation Reduction Amount’ (CRA) may be applied to your future plans.

How can we help?

It is important that you understand how the NDIA can interact with your personal injury claim. Having firsthand experience working with the NDIA and being specialists in personal injury law, we will ensure that you are properly advised of your entitlements. Please contact us on 1800 853 085.

Shane Don Laywers