It’s common for the Road Accident Fund (RAF) to dispute serious injury assessments without proper explanation – and even more common for the RAF to not return a response at all.
According to Mpumelelo Ndlela, “The RAF often delays accepting or disputing the assessments and disputes claims without adequate reasons.”
This can lead to significant delays in RAF cases that include claims for general damages.
In this article, we outline what’s involved and how to take the matter further.
Requirement for a serious injury report
To claim compensation from the RAF for general damages, your injury has to qualify as serious in terms of Regulation 3 of the Road Accident Fund Regulations, 2008.
A medical practitioner must substantiate this claim in a serious injury assessment report, submitted using a RAF 4 form.
The RAF has criteria for when an injury should be considered serious. To establish this, it draws on guidelines from the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Sixth Edition.
How long the RAF has to respond with a decision
Legally, the RAF has 90 days from receipt of the RAF 4 form to accept or reject the ruling, or to request that the third party submit to further medical assessment.
In reality, this is not always the case. Lengthy delays and non-responses are common.
If this happens, it doesn’t mean your claim has been unsuccessful. There are ways to get the process moving again.
RAF failure to accept or reject a serious injury assessment
If the RAF fails to accept or reject a serious injury assessment it stymies the whole claim process and prevents it from proceeding. This is because the court needs assurances that the injuries meet the criteria in order to award damages.
At this point, legal action may be required to get things moving. This involves using the remedies provided for in the Promotion of Administrative Justice Act (PAJA) – typically a review application on the basis of the RAF’s failure to take a decision. This may result in a court directing the RAF to return a decision and a suitable explanation to your attorney within a specified period.
An example can be found in the case Makuapane v Road Accident Fund. The High Court gave the RAF three days to make a decision regarding the RAF 4 form and convey this information to the plaintiff’s attorneys.
Appeals process if the RAF rejects a serious injury assessment
It’s not the end of the road if the RAF decides to reject the serious injury assessment. There is an appeal process to follow that can help the matter be settled in your favour.
Formal application to the HPCSA Tribunal
If you want to dispute the RAF’s rejection of the RAF 4 form, you can lodge an application with the Health Professions Council of South Africa (HPCSA) Appeal Tribunal.
The HPCSA will provide independent oversight and, hopefully, give a fair assessment of your injuries. In many cases, this Tribunal finds that the serious injury assessment was straightforward and shouldn’t have been rejected by the RAF.
This is the right way forward, but it’s important to note that there are significant delays in this process due to backlogs.
Initiation of a formal RAF dispute
If the HPCSA rejects a serious injury assessment, the next step is for your attorney to initiate a dispute with the HPCSA registrar.
This requires using the RAF 5 form and should include the ground(s) on which the rejection of the assessment is disputed. It should also include the submission, as well as the supporting medical reports and opinions. This must be done within 90 days of being notified of the rejection.
The dispute will be determined by an Appeal Tribunal under the HPCSA’s auspices. The Tribunal’s decision is regarded as final.
Further legal action
If internal appeal processes fail to yield a result or the response appears unfair, it may be possible to seek redress through the courts. For example, you could seek a review under the Promotion of Administrative Justice Act (PAJA).
At DSC Attorneys, we are RAF claim specialists. We are well versed in the processes of serious injury claims and appeals. Our medico-legal team can guide and advise you throughout the claims process and any potential complications every step of the way.
Contact us to find out if you have a claim or to schedule a consultation. We work on a no-win, no-fee basis.
