AAI v AAMI Limited
[2021] NSWPICMR 4
•12 April 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | AAI v AAMI Limited [2021] NSWPICMR 4 |
| APPLICANT: | AAI |
| RESPONDENT: | AAMI Limited |
| MERIT REVIEWER: | Roohi Koya |
| DATE OF DECISION: | 12 April 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit Review – statutory benefits and earning capacity under Division 3.3 of the Motor Accident Injuries Act 2017; weekly benefits; whether the insurer has given the required period of notice before discontinuing payments; four weeks notification in second entitlement period; degree of impairment of earning capacity; fall at home; new injury; exacerbation of the original injury; loss of capacity is not related to subject accident; Held- decision set aside; matter remitted to insurer for reconsideration and medical assessment. |
| DETERMINATIONS MADE: | The reviewable decision is: 1. Set aside and remitted to the Insurer for reconsideration in accordance with the directions below: (i) The Insurer is to consider whether the claimant was provided the required period of notice in accordance with s 3.19 of the Act prior to the discontinuation of statutory benefits, and determine whether any payments for statutory benefits are recoverable by the claimant if the required period of notice has not been provided to the claimant. (ii) The dispute in relation to the claimant’s impairment of earning capacity as a result of injuries sustained in May 2020 are to be determined through a medical assessment. 2. This decision takes effect on 1 April 2020. |
STATEMENT OF REASONS
Background
There is a dispute between AAI (the claimant) and the insurer about the claimant's entitlement to weekly payments of statutory benefits that are payable under Division 3.3 of the Act.
AAI was involved in a motor vehicle accident at Quirindi NSW on 8 September 2019 and sustained injuries including a fracture of left wrist.
The insurer paid AAI statutory benefits from 8 September 2019 until 24 January 2020 when AAI was certified fit for pre-injury duties.
In May 2020 AAI slipped at home and injured his left wrist/hand. AAI sought payment of weekly payments for a period of three weeks from 14 May 2020 to 3 June 2020.
On 11 June 2020 the insurer sent AAI a letter advising him that he was not entitled to and that they would not be paying statutory benefits from 24 January 2020. The following reasons for the declinature was provided:
“You were certified for pre-Injury duties dated 24/01/2020. Subsequently, you have supplied a medical certificate dated 27/05/2020 noting you injured yourself on the 14/05/2020 and you will be unfit for work until the 03/06/2020. Further to this, you have supplied a Certificate of Fitness dated 01/06/2020. The certificate makes note you are totally unfit for one week until the 04/06/2020 due to an exacerbation of original injury following a slip at home. Given the above documentation, your time loss is not a result of the injury sustained in the motor accident but rather due to a slip at home. Therefore, in accordance with Section 3.7 of the Motor Accidents Injuries Act 2017, you are not entitled to weekly payments for the period beyond 24/01/2020 as the loss of capacity is not related to the subject accident”.
According to the applicant’s GP, Dr Marshall, on 14 May 2020 the claimant had a fall at home, exacerbating his previous injury.
On 15 June 2020 AAI requested an Internal Review of the AAMI Claims Teams decision not to pay statutory benefits for 14 May 2020 to 3 June 2020.
An internal review was completed by the insurer on 29 June 2020 noting that it was regarding an earning capacity dispute, and the decision was made as follows:
(a) The decision of the AAMI Claims Team was been affirmed.
(b) AAI was deemed fit to return to pre-injury duties.
(c) AAI was not entitled to statutory benefits after 24 January 2020.
On 30 June 2020 AAI made an application to the Dispute Resolution Services which is now in front of me to consider.
Submissions
The claimant submits as follows:
(a) The claimant is entitled to payments of statutory benefits for the period 14 May 2020 to 3 June 2020 given he had exacerbated his injuries due to a fall at home.
(b) The claimant submits that the injury would not have been exacerbated if there were no injuries sustained as a result of the motor vehicle accident on 8 September 2019 as he had no prior symptoms in his left wrist before the motor accident.
(c) The insurer has not paid statutory benefits for the period 14 May 2020 to 3 June 2020.
The insurer submits as follows:
(a) the dispute is actually in relation to Schedule 2, Clause 2, regarding the degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the motor accident.
(b) The insurer notes that an internal review was completed regarding the earning capacity dispute, dated 29 June 2020.
(c) The insurer reiterates and affirms the findings and conclusion made regarding the earning capacity determination, as per the internal review documents, based on the evidence available at that time.
Reasons
The following matters arise for my determination;
(a) Is this a merit review matter, medical assessment matter or both?
(b) If it is a merit review matter is the claimant entitled to any statutory benefits for the period he has claimed?
Under Part 7 of the Act an applicant may make application for
(a) merit review matters,
(b) medical assessment matters or
(c) claims assessment matters.
Merit Review matters
The claimant has indicated in his application form that he has made an application for (a) and (b) above, being merit review and medical assessment matter. Schedule 2 of the Act defines what each of the above matters are. Clause 1 of Schedule 2 of the Act states as follows:
“The following matters are declared to be merit review matters for the purposes of Part 7—
(a) the amount of statutory benefits that is payable under section 3.4 (Statutory benefits for funeral expenses) or under Division 3.3 (Weekly payments of statutory benefits to injured persons),
(c) whether for the purposes of section 3.13 (Termination of weekly payments on retiring age) a motor accident that has caused a person’s injury has happened before the person has reached retirement age,
(d) the suspension of weekly payments of statutory benefits under section 3.14 (Obligations to provide authorisations and medical evidence), 3.15 (Requirements for evidence as to fitness for work) or 3.17 (Treatment, rehabilitation and vocational training),
(e) whether the insurer has given the required period of notice under section 3.19 (Notice required before discontinuing or reducing weekly payments) before discontinuing or reducing weekly payments of statutory benefits,
(f) whether an amount of statutory benefits is recoverable by the injured person under section 3.19 (3) (Notice required before discontinuing or reducing weekly payments), and the amount of statutory benefits so recoverable,
(g) whether for the purposes of section 3.21 (Weekly statutory benefits to persons residing outside Australia) an injured person is or has been residing outside Australia,
(h) whether the insurer is required to vary an amount of a weekly payment of statutory benefits in accordance with section 3.22 (Indexation of weekly statutory benefits),
(i) whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24 (1) (a) (Entitlement to statutory benefits for treatment and care),
(j) whether statutory benefits are payable under section 3.26 (Statutory benefits for loss of capacity to provide gratuitous domestic services), and the amount of statutory benefits so payable,
(k) whether expenses have been properly verified for the purposes of section 3.27 (Verification of expenses),
(l) whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment and care expenses have been incurred after the expiration of the period during which statutory benefits are payable,
(m) whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment or care is authorised by the Motor Accident Guidelines (except in circumstances referred to in clause 2 (c)),
(n) whether treatment and care expenses have been paid or recovered for the purposes of section 3.29 (No statutory benefits for expenses already compensated),
(o) (Repealed)
(p) whether the cost of treatment and care exceeds any limit imposed by the Motor Accident Guidelines for the purposes of section 3.31 (Limits under Guidelines on statutory benefits for particular treatment and care),
(q) whether treatment and care provided to the injured person is treatment and care needs or excluded treatment and care needs to which section 3.32 (No treatment and care statutory benefits for treatment and care needs covered by Lifetime Care and Support Scheme) applies,
(r) whether for the purposes of section 3.33 (Treatment and care provided while persons residing outside Australia) an injured person is an Australian citizen or a permanent resident of Australia or whether treatment and care provided to the injured person has been provided while the person is residing outside Australia,
(s) whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 3.34 (Effect of death on entitlement to statutory benefits), 3.35 (No statutory benefits if workers compensation payable) or 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured),
(t) whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (as applied by section 3.39 (Limitation on statutory benefits in relation to certain mental harm)) or 3.40 (Effect of recovery of damages on statutory benefits),
(u), (v) (Repealed)
(w) whether the insurer is entitled to delay the making of an offer of settlement under section 6.22 (Duty of insurer to make offer of settlement on claim for damages),
(x) whether for the purposes of section 6.24 (Duty of claimant to co-operate with other party) a request made of the claimant is reasonable or whether the claimant has a reasonable excuse for failing to comply,
(y) whether the claimant has provided the insurer with all relevant particulars about a claim in accordance with section 6.25 (Duty of claimant to provide relevant particulars of claim for damages),
(z) whether the insurer is entitled to give a direction to the claimant under section 6.26 (Consequences of failure to provide relevant particulars of claim for damages),
(za) whether the insurer is entitled to suspend weekly payments of statutory benefits under section 6.5 (Duty of claimants to minimise loss) of the Act,
(aa) whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant are reasonable and necessary
I note the issues raised in the dispute do not relate to the amount of statutory benefits payable, nor matters relating to pending claims for damages, retirement age, or suspension of weekly payments of statutory benefits. Therefore paragraphs (a) to (d) are not applicable.
Similarly, the dispute does not raise issues regarding the injured person being in or out of Australia, nor indexation of statutory benefits, nor matters relating to treatment and care, provision of gratuitous domestic services or proper verification of expenses. Therefore paragraphs (g) to (k) are not applicable. I also do not consider that the matters raised in the relate to paragraphs (l)-(aa).
However, based on the facts and evidences in front of me, I note the insurer provided written confirmation on 11 June 2020 to the claimant declining payment of statutory benefits for any period after 24 January 2020, which includes the claimant’s requested period of payment 14 May 2020 to 5 June 2020.
While the claimant has not raised whether he was provided adequate notice prior to the discontinuation of statutory benefits from 24 January 2020, none of the available material indicates that the claimant was given notice of the discontinuation of statutory benefits prior to 11 June 2020.
I note the insurer’s letter of 11 June 2020, Internal Review decision of 29 June 2020 and insurer’s submissions of 19 February 2021 do not indicate that the claimant was provided notice of a discontinuation of statutory benefits from 24 January 2020. This does not appear to have occurred until 11 June 2020. I therefore consider that a possible dispute exists in relation to Schedule 1, Part 7 1(e) and (f) as to whether the insurer has given the required period of notice under section 3.19 of the Act before discontinuing payments and whether an amount of statutory benefits is recoverable by the claimant.
Under section 3.19 of the Act, the insurer is required to give notice before discontinuation of any statutory benefits. Section 3.19(1) states:
“3.19 Notice required before discontinuing or reducing weekly payments
(1) If an injured person has received weekly payments of statutory benefits under this Division for a continuous period of at least 4 weeks, the insurer must not discontinue payment, or reduce the amount, of the statutory benefits without first giving the person not less than the required period of notice of intention to discontinue payment of the statutory benefits or to reduce the amount of the statutory benefits.
Maximum penalty: 50 penalty units.”
Under paragraph 3.19(2)(b) of the Act, the insurer is required to provide four weeks notification given that the claimant was in the second entitlement period.
Therefore paragraphs (e) and (f) of Schedule 2 clause 1 of the Act applies, to make this a merit review matter.
Sub-section 3.19(3) of the Act sates as follows:
“(3) If the payment of statutory benefits to an injured person is discontinued, or the amount of statutory benefits is reduced, by an insurer in circumstances involving the commission by the insurer of an offence under subsection (1), the injured person may, whether or not the insurer has been prosecuted for the offence, recover from the insurer an amount of statutory benefits that:
(a) if no period of notice has been given—is equal to the amount of statutory benefits, or additional statutory benefits, that would have been payable during the required period of notice if payment of the statutory benefits had not been discontinued or if the amount of statutory benefits had not been reduced, or
(b) if less than the required period of notice has been given—is equal to the amount of statutory benefits that would have been payable during the balance of the required period of notice if payment of the statutory benefits had not been discontinued or if the amount of the statutory benefits had not been reduced.
The insurer confirmed in writing on 23 December 2019 that they accepted liability to pay AAI statutory benefits beyond the first 26 weeks after the accident. Then on 11 June 2020 the insurer wrote to AAI advising him that he was not entitled to statutory benefits as of 24 January 2020.
No evidence of other correspondences from the insurer regarding payment, discontinuation or reduction of statutory benefits has been provided. Therefore, on the basis of the evidences provided, the claimant may be entitled under section 3.19 to recover from the insurer, at minimum, statutory benefits for the notice period.
Medical Assessment Matters
As regards the application for Medical Assessment Matters, Clause 2 of Schedule 2 of the Act states as follows:
“The following matters are declared to be medical assessment matters for the purposes of Part 7—
(a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage),
(b) whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care),
(c) whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment or care provided to an injured person will improve the recovery of the injured person,
(d) the degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the motor accident,
(e) whether the injury caused by the motor accident is a minor injury for the purposes of the Act.”
The claimant has submitted that his motor accident injuries worsened as result of the fall at home and his earning capacity was therefore impaired. I note the claimant reiterated at the teleconference on 18 March 2021 that he considers the subsequent injury in May 2020 exacerbated his prior left wrist injury which resulted from the motor accident on 8 September 2019.
The insurer in its submissions dated 19 February 2021 states that “..the fall in May 2020 caused a new injury which is unrelated to the subject incident. The insurer submits there is a lack of objective evidence available to verify how the alleged restrictions are directly due to injuries sustained in the subject accident”.
In respect of the medical evidence submitted by the claimant, I note on 27 May 2020, the claimant’s GP, Dr Marshall, completed a Medical Certificate stating that the “claimant has a medical condition and will be unfit for work from 27/05/20 to 3/06/20. He injured himself on 14 May 20, and his symptoms are consistent with this, and hope he will be right to RTW next week”.
A Certificate of Capacity was completed by Dr Marshall on 29 May 2020 stating that the claimant had “exacerbation of original injury following slip at home”.
A medical certificate from Dr Marshall, dated 4 June 2020 states the claimant “has a medical condition that was recently exacerbated and is now fit to return to work as of 5/06/20”.
While I note the insurer has made a decision as to the claimant’s earning capacity on 11 June 2020, I note Schedule (2)(2)(d) of the Act provides that the “degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the motor accident” is a medical assessment matter. In view of the current medical evidence that asserts the claimant experienced an exacerbation of the original injury sustained in the motor accident, I consider that Schedule 2(2)(d) of the Act applies and the dispute in relation to the claimant’s injury in May 2020 is required to be determined through a medical assessment.
Conclusion
The reviewable decision is:
(a) set aside and remitted to the Insurer for reconsideration in accordance with the directions below:
The Insurer is to consider whether the claimant was provided the required period of notice in accordance with section 3.19 of the Act prior to the discontinuation of statutory benefits, and determine whether any payments for statutory benefits are recoverable by the claimant if the required period of notice has not been provided to the claimant.
The dispute in relation to the claimant’s impairment of earning capacity as a result of injuries sustained in May 2020 are to be determined through a medical assessment.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply and supporting documentation
· Motor Accident Injuries Act2017 (NSW) (the Act)
· Motor Accident Guidelines
· Motor Accident Injuries Regulation 2017.
Roohi Koya
Merit Reviewer
Personal Injury Commission
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