Key Amendments

The key amendments to the MAIA, are as follows:

• Indexation for the purposes of income replacement benefits payable in the ‘first payment period’, ‘second payment period’ or ‘interim payments’, are now rounded up to the nearest dollar, rather than whole $10 (section 18(1)).
• If the ACT Civil & Administrative Tribunal (ACAT) is hearing a dispute between an insurer and an applicant in relation to defined benefits or a ‘motor accident claim’, the ACAT can now make an order in relation to an insurer’s or applicant’s exercise of their duty to act in good faith, including the disclosure of relevant information (section 20(5)).
• If an applicant fails to undergo treatment and care in their recovery plan without a ‘reasonable excuse’, the insurer may suspend treatment and care benefits and income replacement benefit payments until the applicant undergoes the treatment and care. Notice of the suspension must be given to the applicant. A decision to suspend payments for this reason is an internally reviewable decision and an externally reviewable decision through ACAT (sections 124A and 107(2)(b), and Schedule 1, Part 1.1, item 20A and Part 1.2, item 25A).
• When an applicant makes a Quality of Life Benefits application, an insurer must refer them to an authorised Independent Medical Examiner (IME) provider for their first Whole Person Impairment (WPI) assessment. The applicant may only arrange for their second WPI assessment after the first assessment. This amendment makes it clear that the applicant’s second WPI assessment must take place after the first assessment arranged by the insurer (section 137(4)).
• If an applicant is given notice that their WPI has been assessed as at least 10% and that they are entitled to make a ‘motor accident claim’, they now have 6 weeks from the date the claim is finally decided to notify the insurer whether they accept or reject a Quality of Life Benefits offer (section 157(8)).
• For an applicant to make a ‘motor accident claim’, they must have:
  • first made a Quality of Life Benefits application; and
  • been assessed as having a WPI of at least 10% by an IME; or
  • the insurer must have decided they have a WPI of at least 10%; and
  • made a final offer WPI.
• The amendment above prescribes that the process for WPI assessments as set out in the MAIA must be strictly followed. As such, the first WPI report must be obtained from an IME. Any second WPI assessment report from a private medical examiner then can only be used to decide a final offer WPI after considering the first WPI report (section 239(1)(a)).
• The changes also address interactions between the MAIA and the Workers Compensation Act 1951 (ACT). The legislative intent of section 50 of the MAIA is to prevent applicants ‘double dipping’ between the two statutory schemes.
• A workers compensation insurer can finalise a claim (e.g., through making a lump sum payment to settle a claim). However, an applicant is unable to have their MAIA defined benefits claim revived when those benefits have already been paid by the workers compensation insurer.
• Where an applicant’s workers compensation claim is rejected / denied, with payments limited to the date of rejection, the applicant’s MAIA claim can be revived. The relevant MAI insurer will then take over management of the applicant’s claim for defined benefits being their treatment and care, income replacement and quality of life benefits.

Moving forward

The above amendments take effect on 14 July 2023.

Insurers and practitioners should be aware of the changes to ensure compliance with the MAIA and the statutory obligations.

Further information/assistance regarding the issues raised in this article are available from the authors, Brooke Dennington, Special Counsel, and Rohan Reddy, Senior Associate or your usual contact at Moray & Agnew.

The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation at the date of publication. You should seek legal advice on specific circumstances before taking any action.

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