Northern Territory Numbered Regulations

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MOTOR ACCIDENT (COMPENSATION) AMENDMENT REGULATIONS 2014 (NO 19 OF 2014) - REG 5

Regulation 4 replaced

Regulation 4

repeal, insert

4     Guides to the evaluation of permanent impairment

    (1)     For section 4C(2)(a) of the Act, the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition is prescribed.

    (2)     The Office must ensure that a copy of the Guides is available for inspection (in the form of a physical copy or on computer) during ordinary business hours, at the Office's office in Darwin.

4A     Exclusion: driver under influence of alcohol

    (1)     For section 9(2) of the Act, the prescribed circumstances are that, at the time of the accident, the injured person had a concentration of alcohol:

(a)     in his or her breath of 0.08 grams or more per 210 litres of exhaled breath; or

(b)     in his or her blood of 0.08 grams or more per 100 millilitres of blood.

    (2)     If a breath analysis is carried out on the person in accordance with section 29AAC or 29AAD of the Traffic Act , the breath alcohol concentration indicated by the analysis is taken to be the concentration of alcohol in the person's breath at the time of the motor accident.

    (3)     If a sample of the person's blood is taken in accordance with section 29AAK of the Traffic Act within 4 hours of the motor accident, the blood alcohol concentration indicated by analysis of the sample is taken to be the concentration of alcohol in the person's blood at the time of the motor accident.

    (4)     For subregulations (2) and (3), if more than one analysis mentioned in those subregulations is carried out in relation to a person, the analysis that shows the higher concentration of alcohol is to be used.

    (5)     If the person is required under the Traffic Act to submit to a breath analysis or provide a sample of blood and fails to do so, the concentration of alcohol in the person's breath or blood at the time of the accident is taken to exceed the concentration mentioned in subregulation (1)(a) or (b).

    (6)     However, subregulation (5) does not apply if the Office is satisfied that the person had a reasonable excuse for the failure to submit to a breath analysis or provide a sample of blood.

    (7)     If subregulations (2) to (6) do not apply, the Office may have regard to any relevant information or evidence to determine the concentration of alcohol in the person's breath or blood at the time of the motor accident.

    (8)     In this regulation:

"breath analysis", see section 3(1) of the Traffic Act .

4B     Unregistered motor vehicles

For sections 9D(1)(d)(i) and 9E(1)(d)(i) of the Act, the prescribed kind of vehicle is a vehicle that is not fitted with an identification plate under the Motor Vehicle Standards Act 1989 (Cth).

4C     Determination of rights of benefits

    (1)     For section 12 of the Act, the Office may require a person making a claim for benefits under the Act to provide the Office with the following:

(a)     documents related to the person's injury or treatment, including medical, hospital, dental or other health records;

(b)     documents related to the person's medical history before the accident;

(c)     taxation records in relation to the person, to the extent they relate to the claim;

(d)     documents related to the person's employment both before and after the motor accident;

(e)     any other information reasonably related to the claim.

    (2)     For section 12 of the Act, the Office may require a health practitioner or approved allied health professional to:

(a)     examine a person who has made a claim for benefits under the Act; and

(b)     prepare a treatment plan or rehabilitation plan for the person.

    (3)     The cost of examining a person and preparing a plan under subregulation (2) is to be borne by the Office.

    (4)     In this regulation:

approved allied health professional means a person who practices an allied health profession and is approved by the Office.

"health practitioner", see section 5 of the Health Practitioner Regulation National Law.

4D     Necessary and reasonable medical and rehabilitation expenses

    (1)     For section 12(1A) of the Act, in determining whether medical and rehabilitation services are reasonable and necessary in relation to an eligible person under section 18(1) of the Act, the Office must consider each of the following:

(a)     the extent to which the services will be of benefit to the person;

(b)     the appropriateness of the services having regard to:

(i)     the nature and severity of the injury; and

(ii)     the likely effectiveness of the services;

(c)     any alternatives to the provision of the services;

(d)     whether the service provider is appropriate to provide the services;

(e)     the cost effectiveness of providing the services to the person;

(f)     how long the services are to be provided for;

(g)     any other relevant considerations.

    (2)     In considering the extent to which services will be of benefit to the person, the Office must consider each of the following:

(a)     the extent to which the services are likely to:

(i)     promote or maintain the person's recovery or independence; or

(ii)     improve the person's functional autonomy;

(b)     the short- and long-term benefits of the services;

(c)     the extent of any potential risks related to the provision of the services.

    (3)     In considering whether the service provider is appropriate to provide the services to the person, the Office must consider each of the following:

(a)     whether the provider possesses the necessary qualifications and experience to provide the services;

(b)     the accessibility of the provider to the person.

4E     Eligibility: benefits for long-term attendant care services

    (1)     For section 18BC(1)(c) of the Act, the prescribed criteria are:

(a)     the person has suffered an injury of a kind listed in Schedule 1; and

(b)     either subregulation (2) or (3) applies.

    (2)     This subregulation applies if:

(a)     the criteria set out in Schedule 1 for that kind of injury are satisfied; and

(b)     the injury is permanent and stable.

    (3)     This subregulation applies if subregulation (2) does not apply but, in the opinion of the Office, exceptional circumstances exist in relation to the person which warrant the payment of benefits for attendant care services.

    (4)     The Office must obtain a certificate from a medical specialist approved by the Office stating:

(a)     the medical specialist has assessed the injured person; and

(b)     whether the person has an injury of a kind listed in Schedule 1; and

(c)     if the person does have such an injury, whether, at the time the certificate is given, subregulation (2) applies.

    (5)     For the avoidance of doubt, in assessing whether a person is eligible for benefits under section 18BC, the Office must be satisfied that the criteria in subregulation (1) are met on the date the Office assesses the person's eligibility.

    (6)     In this regulation:

"medical specialist" means a medical practitioner who holds specialist registration under the Health Practitioner Regulation National Law in a recognised speciality that is relevant to the injury.

4F     Eligibility: benefits for interim attendant care services

    (1)     For section 18BD(1)(c) of the Act, the prescribed criteria are:

(a)     the person has suffered an injury of a kind listed in Schedule 1; and

(b)     either subregulation (2) or (3) applies.

    (2)     This subregulation applies if:

(a)     the criteria set out in Schedule 1 for the injury (excluding any requirements as to the permanency of the injury) are satisfied; and

(b)     the person's condition at the date of assessment is not permanent and stable.

    (3)     This subregulation applies if subregulation (2) does not apply but, in the opinion of the Office, exceptional circumstances exist in relation to the person which warrant the payment of benefits for attendant care services.

    (4)     The Office must obtain a certificate from a medical specialist approved by the Office stating:

(a)     the medical specialist has assessed the injured person; and

(b)     whether the person has suffered an injury of a kind listed in Schedule 1; and

(c)     if the person does have such an injury, whether, at the time the certificate is given, subregulation (2) applies.

    (5)     For the avoidance of doubt, in assessing whether a person is eligible for benefits under section 18BD, the Office must be satisfied that the criteria in subregulation (1) are met on the date the Office assesses the person's eligibility.

    (6)     In this regulation:

"medical specialist" means a medical practitioner who holds specialist registration under the Health Practitioner Regulation National Law in a recognised speciality that is relevant to the injury.

4G     Determination of benefits for attendant care services

For sections 18A(3), 18B(3) and 18BF(1) of the Act, benefits payable for attendant care services are to be determined in accordance with Schedule 2.

4H     Necessary and reasonable attendant care services

    (1)     For section 12(1A) of the Act, in determining whether attendant care services are reasonable and necessary in relation to an eligible person under section 18BE(1)(b)(i) of the Act, the Office must consider each of the following:

(a)     the extent to which the services will be of benefit to the person;

(b)     the appropriateness of the services having regard to the person's ability and care needs as assessed by the Office;

(c)     any alternatives to the provision of the services;

(d)     whether the service provider is appropriate to provide the services;

(e)     the cost effectiveness of providing the services to the person;

(f)     how long the services are to be provided for;

(g)     any other relevant considerations.

    (2)     In considering the extent to which services will be of benefit to the person, the Office must consider each of the following:

(a)     the extent to which the services are likely to:

(i)     promote or maintain the person's recovery or independence; or

(ii)     improve the person's functional autonomy;

(b)     the short- and long-term benefits of the services;

(c)     the extent of any potential risks related to the provision of the services.

    (3)     In considering whether the service provider is appropriate to provide the services to the person, the Office must consider each of the following:

(a)     the age and ethnicity of the injured person and any other cultural or linguistic factors;

(b)     whether a reasonable person is likely to consider the provider acceptable;

(c)     the accessibility of the provider to the person.

    (4)     If the person is less than 15 years of age, the Office must also consider the care needs of a typically developing child the same age as the person.

4J     Approved providers of attendant care services

For the definition approved provider in section 18BE(2) of the Act, the prescribed criteria are:

(a)     for attendant care services provided within the Territory – that the person:

(i)     has a current contract with the Territory to provide services of a nature similar to attendant care services in accordance with the Northern Territory Disability Service Standards; or

(ii)     has a current contract with the National Disability Insurance Agency to provide services of a nature similar to attendant care services in the Territory; or

(b)     for attendant care services provided in a State or another Territory – that the person:

(i)     has a contract with, or has been approved by, the department or agency responsible for the provision of disability care services, to provide services of a nature similar to attendant care services in that State or Territory; or

(ii)     has a current contract with the National Disability Insurance Agency to provide services of a nature similar to attendant care services in that State or Territory; or

(c)     that the person is, in the opinion of the Office, appropriate to provide attendant care services.

4K     Building alterations

    (1)     For section 19(2)(b) of the Act, the limitations and qualifications in this regulation apply to benefits for the cost of alterations to a building in which an eligible person resides or proposes to reside under section 19(1)(b)(i) of the Act.

    (2)     The benefits are limited to alterations to:

(a)     access into and throughout the building; and

(b)     the following parts of the building:

(i)     a bathroom;

(ii)     a bedroom;

(iii)     a living/dining area;

(iv)     a kitchen or food preparation area.

    (3)     The benefits are not payable in relation to the construction or alteration of a pool, spa or other aqua-therapy facility.

    (4)     The benefits are payable only if the alterations are approved by the following:

(a)     if the building forms part of a unit title scheme:

(i)     if the eligible person owns the unit in which the person resides or proposes to reside – the body corporate; or

(ii)     if the eligible person does not own the unit in which the person resides or proposes to reside – the owner of the unit and the body corporate;

(b)     if the building does not form part of a unit title scheme and is owned by a person other than the eligible person – the owner of the building;

(c)     all persons whose approval of the alterations is required by a law of the Territory or State or other Territory in which the building is located.

    (5)     The benefits are not payable unless:

(a)     an occupational therapist approved by the Office certifies the building is appropriate for the injured person or is capable of being altered so that it is appropriate for the injured person; and

(b)     the Office has approved the proposed alterations before the alterations are commenced.

    (6)     The certificate and approvals mentioned in subregulations (4) and (5) must be obtained:

(a)     if the alterations are to a building in which the person was living at the time of the motor accident – before the alterations commence; or

(b)     if the alterations are to another building:

(i)     before the person commits to moving to the building; and

(ii)     before the alterations commence.

    (7)     In this regulation:

"body corporate" means:

(a)     a body corporate as defined in section 5 of the Unit Title Schemes Act ; or

(b)     a corporation as defined in section 4(1) of the Unit Titles Act ; or

(c)     a body corporate or owners corporation (however described) of a unit title scheme.

"unit title scheme" means:

(a)     a unit title scheme as defined in section 5 of the Unit Title Schemes Act ; or

(b)     a units plan as defined in section 4(1) of the Unit Titles Act ; or

(c)     a strata plan (however described) under the legislation of a State or other Territory.

4L     Necessary and reasonable building alterations

For section 12(1A) of the Act, in determining whether alterations to a building mentioned in section 19(1)(b)(i) of the Act are necessary and reasonable, the Office must consider each of the following:

(a)     the amount of benefits already paid to the person under section 19(1)(b)(i) of the Act;

(b)     the extent of any financial gain or loss as a result of alterations previously paid for under section 19(1)(b)(i) of the Act;

(c)     the nature and extent of the alterations;

(d)     the likely future circumstances of the person, including how long the person is likely to reside or continue residing in the building;

(e)     any other relevant considerations.

4M     Reduction of benefits for influence of alcohol

    (1)     For section 20A(2) of the Act, the prescribed circumstances are that, at the time of the accident, the qualifying person had a concentration of alcohol:

(a)     in his or her breath of 0.08 grams or more per 210 litres of exhaled breath; or

(b)     in his or her blood of 0.08 grams or more per 100 millilitres of blood.

    (2)     If a breath analysis is carried out on the person in accordance with section 29AAC or 29AAD of the Traffic Act , the breath alcohol concentration indicated by the analysis is taken to be the concentration of alcohol in the person's breath at the time of the motor accident.

    (3)     If a sample of the person's blood is taken in accordance with section 29AAK of the Traffic Act within 4 hours of the motor accident, the blood alcohol concentration indicated by analysis of the sample is taken to be the concentration of alcohol in the person's blood at the time of the motor accident.

    (4)     For subregulations (2) and (3), if more than one analysis mentioned in those subregulations is carried out in relation to a person, the analysis that shows the higher alcohol concentration is to be used.

    (5)     If the person is required under the Traffic Act to submit to a breath analysis or provide a sample of blood and fails to do so, the concentration of alcohol in the person's breath or blood at the time of the accident is taken to exceed the concentration mentioned in subregulation (1)(a) or (b).

    (6)     However, subregulation (5) does not apply if the Office is satisfied that the person had a reasonable excuse for the failure to submit to a breath analysis or provide a sample of blood.

    (7)     If subregulations (2) to (6) do not apply, the Office may have regard to any relevant information or evidence to determine the concentration of alcohol in the person's breath or blood at the time of the motor accident.

    (8)     In this regulation:

"breath analysis", see section 3(1) of the Traffic Act .

4N     Reduction of benefits under section 20A of the Act

    (1)     For section 20A(5) of the Act, benefits payable in respect of the death of a qualifying person in relation to a motor accident that are to be reduced under section 20A of the Act must be reduced in accordance with this regulation.

    (2)     If, at the time of the motor accident, the qualifying person had a concentration of alcohol in a range specified in the Table to this regulation, the benefits payable under section 20A of the Act, as reduced under section 11 of the Act, are to be reduced by the percentage specified in the Table for that alcohol concentration range.

Table     Benefit reductions

Alcohol concentration range

Reduction (%)

Equal to or greater than 0.080 but not more than 0.133

30

Equal to or greater than 0.133 but not more than 0.186

45

Equal to or greater than 0.186 but not more than 0.240

60

Greater than 0.240

75

    (3)     If the Office determines that benefits are to be reduced under section 20A of the Act due to the influence of a drug or the qualifying person's risky conduct, the reduction is to be a proportion of the benefits otherwise payable as considered appropriate by the Office having regard to the extent to which, in the opinion of the Office, the influence of the drug or the person's risky conduct (as the case requires) contributed to the accident.

    (4)     In this regulation:

"alcohol concentration" means:

(a)     the concentration of alcohol in the breath measured in grams per 210 litres of exhaled breath; or

(b)     the concentration of alcohol in the blood measured in grams per 100 millilitres of blood.



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