Personal Injury Lawyer Olla Kutieleh outlines the requirements for making a claim for Pain and Suffering and Loss of Earning Capacity whilst on the Lifetime Support Scheme (LSS).
If you are on the Lifetime Support Scheme (LSS) it means you have been severely injured in a motor vehicle accident in South Australia which occurred on or after 1 July 2014.
The LSS was introduced by the Motor Vehicles Accidents (Lifetime Support Scheme) Act 2013. It is a no fault Scheme, which means that you are potentially covered even if the accident was your fault. However, the critical qualifying question is whether or not your injury or injuries are deemed catastrophic.
In order to be eligible to access the LSS, the LSS Rules require that your injury or injuries fall into at least one of the following criteria:
1. Spinal cord injuries;
2. Traumatic brain injuries;
4. Severe burns;
5. Permanent blindness.
What costs are covered by the LSS?
Under the Lifetime Support Scheme, all reasonable treatment, care and support required as a result of the injuries you sustained in your motor vehicle accident should be paid. Such treatment can include:
1. Doctor’s appointments;
2. Dental treatment;
4. Rehabilitation including physiotherapy and speech therapy;
5. Respite care;
7. Equipment e.g. wheelchairs and communication devices;
8. Ambulance transportation.
When determining if a particular treatment or service is “necessary and reasonable” the Lifetime Support Authority will give consideration to:
1. The benefits you would receive from the provision of the said service;
2. How the service relates to you; and
3. Whether that particular treatment or service is the most appropriate and cost efficient treatment option
What is not covered by the LSS?
While the LSS assists catastrophically injured people with the ongoing management of their injuries, it is also important to know what entitlements are not covered under the Scheme.
The LSS does not cover loss of earning capacity nor does it allow for general damages, commonly referred to as pain and suffering. These losses can be considerable, particularly if your injuries have qualified you to access the LSS.
If the accident was caused by the negligence of another driver and you have sustained significant injuries you may still have an entitlement to make a separate claim for pain and suffering and any economic loss.
Pain and Suffering
To be eligible for a claim for pain and suffering, Section 52 Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 – Schedule 2 provides that your injuries must be assigned an Injury Scale Value (ISV) of greater than 10 points. The assessment of your injuries against the ISV, which ranges from 1 – 100 points can only be undertaken by an accredited assessor.
If your injuries are assessed at greater than 10 points on the ISV, i.e. 11 or higher, then you may be entitled to compensation for pain and suffering in accordance with Section 52 Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 – Schedule 2.
Economic loss covers both past loss of earnings and loss of future earning capacity and includes loss of superannuation.
Past economic loss refers to the period of time following your accident that you are unable to return to work due to an ongoing incapacity. While Section 54 of the Civil Liability Act 1936 provides that the first 7 days of incapacity following an accident are not recoverable, following the first 7 days there are no thresholds to making a claim for past economic loss. That is if you are unable to return to work after one week following your accident, you should be able make a claim for lost income from that time onwards.
Future economic loss refers to your ongoing complete or partial incapacity for work into the future. While there are exceptions, the general rule set out in Section 56A(2) Schedule 2 of the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 is that to be entitled to compensation for future loss of earning capacity your injuries must be assessed as exceeding 7 points on the ISV table.
That is, if your injuries are assessed at 8 points or higher on the ISV table, you should be entitled to make a claim for your future loss of earning capacity. Examples of factors the courts will take into account when assessing the value of any future economic loss include your age, your earnings in previous years and your vocational training.
If you or a family member are on the LSS and have a query about any additional entitlements you may have we recommend that you seek expert legal advice as soon as possible.
For further information or assistance with your legal matter contact us.