The Insurance Commission of Western Australia (ICWA)

ICWA is a wholly WA government owned insurance company, tasked with handling and compensating all third party victims of motor vehicle accidents (MVA) in Western Australia. What people don't know, however, is that if you become the innocent victim of a MVA: 

• ICWA is not obliged to pay you salary continuance during your recovery period. Although in theory you can make an application for salary continuance, ICWA rarely, if ever, grants it. The reason is simple, salary continuance takes pressure off you, the claimant, and ICWA wants you to be under as much financial stress as possible, so as to force you to settle your claim for as little as possible. It would be logical for the system to work the same as Workers' Compensation, in that you receive your full pay during your convalence period!

• The overwhelming majority of the medical profession, will not bill ICWA directly for any treatment you require, even if you have a claim number. The reason, I kept  hearing from my doctorywas that they (the doctors) regularly wait for years for payment and sometimes never get paid.  Medicare and private health insurance will pay their normal share, however, you have to inform both organizations that the injuries are the result of a MVA and it is YOUR responsibility to seek eventual reimbursement for these medical costs from ICWA. If you fail to do this, you will have to pay for your medical expenses out of any settlement you may or may not receive. You now have no salary continuance and have to pay for your out of pocket medical expenses and deal with a mountain of paper work.

• Also, ICWA will not pay any medical expenses until it has received a signed statement from the driver of the vehicle at fault. In my case, that was a driver who has never held a driver's license and had multiple convictions for driving without a license and had no fixed address. This was the reason I first contacted a lawyer as ICWA said for months that they hat they could locate the driver. Eventually it was the lawyer who finally got ICWA to engage a private investigator and track the driver down.

• The Case Managers at ICWA have no medical training and they are the people who decide whether they pay for your treatment and ultimately whether you receive compensation or not. These untrained public servants will decide whether reports from your cardiologist, psychiatrist, orthopedic surgeon, blunt chest trauma specialist, nerosurgeon, GP or emergency department are accepted or disputed.

• If your claim i. less than a $100.000, you have a good chance of receiving a payout relatively quickly as any legal challenge - in most cases - is more expensive than a settlement. If your claim sits between $100.000 and $250.000 you are entering a grey zone where you have to expect a longer and more complex process and it can be worthwhile for ICWA to challenge your claim. However, if your claim is exceeding $250.000, congratulations, you now have a 90% chance of your claim going to a judge for settlement and this is where your problems really start. You now have no salary continuance and you are paying for all your out of pocket medical expenses,foot enormous legal bills and witness costs and the you also pay for all costs  related to expert reports.

• ICWA likes to claim, that only 1-3% of claims go before a judge and likes to portray these claimants as being unreasonable. This is nonsense because what the statistics show clearly is that ICWA is not able or unwilling to settle large claims and instead "subcontracts" the ultimate decision to the legal system. So here you will be facing new obstacles as none of the lawyers, barristers or judges have any medical training and yet they are being asked to interpret often very complex evidence in order to come to a decision. I like to compare the situation to somebody that has been diagnosed with a serious illness, let's use cancer as an example. If this person wishes to get a second opinion what he/she going to do is seek a such opinion by engaging a solicitor or a judge. The option of a solicitor and a judge seems ridiculous, doesn't it, but that is exactly what happens if you have been seriously injured in an MVA in WA. In  the event a case goes to court, ultimately a judge will make a decision in regards to the cancer treatment, as opposed to a fully qualified oncologist.

• As the judge found in my case that I was an "unreliable historian" and that I had obtained referrals to doctors by deceit, had falsified my symptoms when speaking to psychiatrists and that I had made a fraudulent claim against the Insurance Commission of WA. The Insurance Commission, however, has expressly refused to pursue me in court for making a fraudulent claim. They have even stated (verbally) that they are not going to pursue me for their costs in defending themselves against my claim. The reason is simple, if they did pursue me through the courts, ALL the evidence that they had withheld from the trial, would become admissible and they would lose instantly. If you wish to read where the judge made serious errors, read her decision which includes my comments and which my lawyers agreed with or this extract with a few good examples! It will make you wonder if she was just simply biased, plain ignorant or a combination of both and therefore totally unsuitable for the assessment of a medically complicated case.

• She had previously become untenable as Chief Justice of the WA Children's Court and was moved to the District Court, to enable her to attain her ten years service as a judge and thereby entitling her to a fully tax payer funded, life long annuity/pension. This annuity/pension is 60% of a District Court Judge's Salary and he/she therefore receives over $200.000 annually for the rest of her life. Any Superannuation contributions he or she made in earlier careers, don't come into the equation and are simply the icing on the cake! These very, very generous and unfunded pension arrangements for judges are very expensive financial burden for the taxpayer as they are paid from general revenue, ie your income tax.

In the case of the Federal Government which is responsible for judges sitting on the Federal, Supreme- and High Court, the Federal Governments pension liabilities for 102 active and 180 retired judges (Total 282 judges) have now reached $837 Mio as per 30th of June 2011 (approximately $3 Mio for every judge at federal level). Eventhough Superannuation is now compulsory for all working Australians and it is us who pay the contributions, no change has ever been made to the retirement arrangements of judges. Judges don't pay any contributions; the benefits are fully taxpayer funded!

In the case of District Court Judge Kate O'Brien who retired at the age of 61 and who can statistically expect to live at least another 20 years (tendency rising)her pension benefits are going to cost the tax payer over $4 Mio in today's money to age 81 and increasing if she lives longer. Furthermore, the adjustment for cost of living expenses  will raise this amount considerably. The  requirement for a judge to serve ten years in his/her position to become entitled to these extremely generous pension benefits represent a major obstacle in any attempt to remove a judge from office, for whatever reason. Unless he/she has been caught in some form of criminal activity the sitting judge will be allowed to serve his or her ten years before being discreetly being sent into retirement.

                             Remember, in WA their is no Judicial Review Commission as in the Eastern States!

reviewed 23.3.17 ML

Possible remedies for innocent third party victims of MVA's:

• ICWA, similarly to the Workers Compensation model, pays salary continuance from day one.
• ICWA, pays for all the medical expenses as required or recommended by the treating doctors.

Both of the above remedies, would allow the victim to focus on his recovery, instead of having to worry more and more about his financial situation. It would also help prevent the victims health deteriorating further over time, not as a result of the MVA itself, but as a direct result of the consequences of the MVA. See the psychiatric reports and especially the report ICWA obtained from its psychiatrist Dr. Peter McCarthy

• All the medical evidence and other reports that ICWA obtains, must be made available to both the victim and the judge. ICWA should not, as is common practice, be able to withhold evidence from the court, that supports a claimants case.
• Before ICWA can take a case to court, ALL the available medical evidence should be checked by an independent and suitably qualified medical panel. Under no circumstances, should a ICWA Case Manager with no medical training, be allowed to make such a decision.
• ICWA's in house Case Managers, should be replaced by independent insurance assessors, as is the case if you have a building or contents claim with your insurer. Both parties should have an influence on which assessor is selected and he/she should be paid by both parties, that helps keep the assessors both neutral and objective.
• If the ICWA causes or requests any trial postponements, before your case goes to trial. ICWA should have to pay for all your legal costs and disbursement costs, that are wasted as a direct result of the postponement.
• ICWA should not allow employees (in my case the ICWA Case Manager responsible for my claim) to use his own doctor relatives, from compiling expert reports on behalf of ICWA.
• Involving a judge should be an absolute last resort. However any judge assigned to the case, should have extensive experience in personal injury law and consideration should be given to assigning suitable qualified experts, to assist the judge in interpretation for an example, the often complex medical evidence. This is similar to what happens at coronial inquiries.
• Reasonable legal costs should be paid for by ICWA. This would increase the pressure on ICWA to find an acceptable solution.

The "No Fault" swindle

Last year, there was a lot of advertising by ICWA and the State Government, highlighting the new "No Fault" clause in case of a catastrophic motor vehicle accident. Many West Australians will have sighed in relief thinking they were now covered in case of a MVA, especially a catastrophic MVA requiring 24/7 care. What neither the government or ICWA have told the public, is that Catastrophic injuries are defined by ICWA as:

• spinal cord injuries

• traumatic brain injuries

• multiple amputations

• severe burns

• permanent traumatic blindness

What is not included for people eligible under the new system:

• services for injuries or medical conditions not related to the motor vehicle crash

•  economic loss and pain and suffering payments, unless making a common law claim through the existing CTP scheme where fault can be established against another driver

•  treatment, care, support or service provided to an individual on a gratuitous basis

•  ordinary living costs

•  ordinary costs of raising a child

•  services provided by a person who is not an approved provider

•  treatment, care and support provided in contravention of the regulations.

That means NO salary continuance, no money for food, ordinary bills, mortgage, child education cost! The catastrophically injured person needs to be placed in a hospital, care home or other institution, because their is no money for him to live at home! Check out this fact sheet published by ICWA!

Those $99 extra we now pay each year with our vehicle registration fees, is "To fund the reasonable and necessary support needs of 92 people catastrophically injured each year" in WA and that is all. Previously, people catastrophically injured, but who we were NOT at fault for the accident, were covered under the previous system. The changes now however, apply ONLY to people at fault of causing the MVA and who are catastrophically injured. Only an average of 92 people per year are going to benefit from the changes! If you are catastrophically injured, your compensation claim will still, on average, drag on for years, in some cases for over a decade. The reason for this being that ICWA will argue for years about the expected life time of the catastrophically injured person. The compensation payment for a person expected to live for only a few years or a child that might live for 70 or more years is huge. Even if you have suffered what you believe to be a catastrophic injury, you are still going to have to prove it, because ICWA will try and claim that the injuries are recoverable, that the coma is not permanent etc. etc..

If you are one of the thousands of other motorists injured in an MVA in Western Australia, guess what, you are not covered by the new system. And if you are an innocent third party victim in an MVA, who was seriously, but not catastrophically injured. Nothing has changed, you will still need a lawyer to get compensation. During that time, ICWA still has no obligation to pay for your medical costs or salary continuance, good luck paying your mortgage, rent or car payments. ICWA still has no interest or obligation to reduce the financial stress people suffer as a result of an MVA, as the financial stress often forces victims to accept insufficient settlements. The fact that the current system, also has a major negative impact on the recovery process of injured people, doesn't interest ICWA or the government.  

Don't believe what I have just said; Read the ICWA fact sheet regarding the new No Fault system

Updated 16 March 2017