Motor Accident Injury: Should I Accept My Compensation Offer?
“How do I know if my compensation offer is fair?” This is a common question that many people have after receiving an offer of compensation following a motor vehicle accident claim in South Australia. Personal Injury Lawyer Olla Kutieleh outlines what factors will influence the answer to this question and also provides a case study for comparison.
“How do I know if my injury compensation offer is fair?” This is a common question that many people have after receiving an offer of compensation following a motor accident claim in South Australia. Personal Injury Lawyer Olla Kutieleh outlines what factors will influence the answer to this question and also provides a case study for comparison.
Often it is difficult to determine if the offer for compensation you have received is truly ‘fair’. It is not uncommon for those injured in a motor vehicle accident to receive an offer of compensation from Allianz and accept it because they assume this is the best offer they are likely to receive or they have no reference point to compare their offer to.
This is completely understandable as assessing the value of a claim is complex. To highlight the complexity, I have outlined below the way that your claim is assessed by Allianz. I have also provided a case study in order for you to gain a better understanding.
The Legislation:
In July 2013, a new legislative frame work was introduced in South Australia to adjust the compensatory entitlements of people who have sustained an injury (or injuries) in a motor vehicle accident in South Australia.
As part of this new framework, a person’s injuries must meet prescribed thresholds in order to access compensation. For example, in order to be compensated for pain and suffering your injuries must be given an Injury Scale Value exceeding 11 and to be compensated for any loss of future earning capacity your injuries must exceed 7 points on the ISV.
Accordingly, the first step to determining if you have received a fair compensation offer is to determine if your injuries have been given the appropriate Injury Scale Value.
What is the Injury Scale Value (ISV)?
The ISV table compromises a complete list of recognised injuries and assigns each injury with a range in value, for example, a moderate cervical spine injury (Item 82 on the ISV) has an ISV range of 5 – 15 points. Each ISV point then attracts a prescribed monetary amount.
For example, 11 points on the ISV scale entitles you to a payment of $3,000.00 for pain and suffering.
How do I know the ISV for my injury?
In order to know where your injuries fall on the ISV table an assessment must be performed by an accredited assessor to determine what ISV range your injuries fall within. It is a requirement that this does not occur until your injuries have stabilised. Waiting for an injury to stabilise or indeed knowing when your injuries have stabilised is often unclear and requires medical opinion.
Ensuring that the assessment of your injuries against the ISV is performed correctly and that the accredited assessor has the correct information before them when conducting the assessment is vital. If you think your injuries have stabilised, I recommend you seek legal advice regarding arranging an assessment of your injuries. Stability is generally reached when there has been no significant change in your symptoms for a number of months.
As we approach three years since the new legislative framework, I have been contacted by many people who feel their injuries have stabilised and are seeking assistance in managing their claims with Allianz, particularly with respect to arranging ISV assessments and settlement discussions.
I have also been contacted by people who have already received an offer from Allianz to settle their claim and want to make sure the offer is a fair and reasonable. Given my experience, I recommend seeking legal advice before accepting any settlement proposal to ensure your ISV assessment has been determined correctly and that the maximum ISV rating has been achieved.
For example, where there are ‘exceptional circumstances’ or there have been multiple injuries there may be potential to obtain an uplift of your ISV rating that exceeds the threshold set out in the ISV table. A higher ISV assessment may ultimately result in an increase in the compensation payable to you or ensure that you reach the threshold.
In the case study below, had the Plaintiff’s multiple injuries not been taken into account, she would have been assessed based on her dominant injury alone. Had this occurred, it is unlikely that she would have met the thresholds for pain and suffering or future economic loss.
Example Case Study – Coop v Suncop Metway Insurance Ltd [2005] QDC 79
– Ms Coop was 29 years of age when she sustained personal injuries as a result of the negligence of the Defendant on 10 December 2002;
– As a result of the accident, the plaintiff suffered injuries to her:
– Soft tissue injury to her left arm;
– Soft tissue facial injury, including bruising and scratches;
– Cervical spine (neck) injury;
– Ganglion to left wrist;
– Displaced fracture of the nose.
– To assess Ms Coop’s ISV rating, the court determined that Ms Coop’s dominant injury was her nasal fracture, as this attracted the highest ISV of all her injuries with a range of 6 to 13 points.
– While the court found that Ms Coop’s nasal fracture alone would have attracted an ISV in the mid range of 6 to 13 points, the Court found that when taking into account Ms Coop’s multiple injuries, even a top range value of 13 was inadequate to reflect the impact of Ms Coop’s injuries on her.
– Accordingly, the Court enlivened its power to uplift the ISV rating to a figure which exceeded the 13 point maximum.
– Taking into account the following matters the Court assessed Ms Coop’s ISV at 16 for her multiple injuries:
– the adverse impact Ms Coop’s multiple injuries had on her;
– the loss of her amenities of life;
– her young age.
It is evident from a case study such as this that compounding injuries and the ISV scale can be a difficult area of law, subject to medical assessment and legal interpretation. For this reason it is always important to seek legal advice before accepting any compensation offer, especially in instances of multiple injuries.
Please note – This case was heard in the District Court of Queensland and the legislation in Queensland differs to that of South Australia. There have been no decisions made on this subject yet in SA. However, the legislation has many similarities and this would suggest the law may be applied in a similar way.
Important Time Limits
If you have sustained an injury in a motor accident, you have three years from the date of the accident to bring a claim for the personal injuries you sustained. If you were under the age of 18 at the time of the accident, you have three years from your 18th birthday to file a claim.
Summary
So in order to answer the question “is my compensation offer fair?” there is a number of factors to consider, and often the answer may not be immediately clear. You must first consider your ISV rating and determine whether it is accurate. Where you have suffered multiple injuries, this includes determining whether your multiple injuries, and their compounding effects, have been considered in your ISV assessment.
To ensure your claim is fair and reasonable I always suggest that you seek legal advice before accepting any offer. Understandably, initial offers may seem appealing, especially after waiting considerable time for injuries to settle and compensation to be offered. However, having a legal professional review your offer may result in a much more favourable outcome and ensure that what you receive truly reflects the seriousness of your injuries.