ABY v AAI Limited t/as GIO
[2021] NSWPICMR 27
•5 July 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | ABY v AAI Limited t/as GIO [2021] NSWPICMR 27 |
| APPLICANT: | ABY |
| RESPONDENT: | AAI Limited t/as GIO |
| MERIT REVIEWER: | Brett Williams |
| DATE OF DECISION: | 5 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit Review; whether for the purposes of section 8.10 of the Motor Accidents Injuries Act 2017 the costs incurred by the claimant are reasonable and necessary; two medical assessments undertaken in relation to minor injury disputes; one relating to physical injury; the second relating to psychological/psychiatric injury; claimant submitted there is no express provision prohibiting the Claimant from being entitled to legal costs if finding of ‘minor’ injury or adverse finding; Insurer submitted the determinations of the Assessors were commensurate with internal review decision and claim was without merit; complicated medical history; claimant’s application had support from treating practitioners; Held- claimant is entitled to recover from the Insurer her reasonable and necessary legal costs. |
| DETERMINATIONS MADE: | 1. The Claimant is entitled to recover from the Insurer her reasonable and necessary legal costs assessed in accordance with the Motor Accident Injuries Act and Regulation 2017 as follows: (a) In connection with the medical assessment of the minor injury dispute relating to physical injuries $500plus GST. (b) In connection with the medical assessment of the minor injury dispute relating to psychological injuries $700plus GST. |
Background
ABY (the Claimant) seeks recovery of her legal costs incurred in connection with two medical assessments undertaken in relation to minor injury disputes: one relating to physical injury and the second relating to psychological/psychiatric injury. The Claimant’s position was that she suffered both physical and psychological injury as a result of a motor vehicle accident on 19 July 2018 (the accident). A single application was submitted in relation to the minor injury disputes. The Claimant was the subject of two medical assessments, one undertaken by Assessor Preston and the other by Assessor Samuell. She was not successful, Assessor Preston certifying that the physical injuries caused by the accident were minor injuries[1] and Assessor Samuell certifying that her psychological injury was not caused by the accident[2].
[1] Certificate dated 30 May 2019.
[2] Certificate dated 31 May 2019.
The parties have been unable to reach agreement in relation to the Claimant’s reasonable and necessary costs in connection with the medical assessments.
Having considered the subject matter of the dispute, the submissions and documents relied on by the parties together with s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have determined that the proceedings can be determined on the papers. I am satisfied that sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding any formal hearing.
Transitional matters
The Personal Injury Commission (the PIC) was established on 1 March 2021. These proceedings were commenced before the PIC was established. They constitute both pending proceedings and pre-establishment proceedings[3] that I am empowered to determine.[4]
[3] Sch 1 Pt 2 cl 14A Personal Injury Commission Act 2020 (the 2020 Act).
[4] Sch 1 Pt 2 cl 14B 2020 Act.
Teleconference
With a view to facilitating the just, quick and cost effective resolution of the real issues in dispute I held a teleconference with the parties on 29 June 2021.
The parties confirmed that the monetary unit value applicable to the Claimant’s costs is $102.06. Accordingly, for the purposes of this matter, the regulated maximum legal costs in connection with a medical assessment is $1,633.00 and the maximum costs per claim is $6,124.00
Ms Misitano for the Claimant confirmed that no claim was made for legal costs in connection with the costs dispute.
I informed the parties of my views as follows:
(a) Success was not a pre-requisite to the Claimant recovering costs in connection with a medical assessment.
(b) There were two medical assessments addressing minor injury, one in relation to the physical injuries and a second in relation to the psychiatric/psychological injuries.
(c) The Claimant was not entitled to recover the regulated per assessment maximum as of right. The maximum sets a cap on the legal costs that can be recovered. The Claimant is only entitled to recover her reasonable and necessary costs in connection with the assessments.
I encouraged the parties to engage in further discussions with a view to resolving the costs dispute. I have subsequently been informed by the parties that resolution of the dispute was not possible. The parties have asked that I proceed to determine the dispute.
Submissions
The Claimant relies on written submissions dated 19 April 2021. In summary, the Claimant argues that:
(a) A medical assessment under Division 7.5 of the Act includes assessment of a medical dispute about whether the accident is a minor injury in accordance with Section 2(e) of Schedule 2 of the Act.
(b) There is no express provision prohibiting the Claimant from being entitled to legal costs if an Assessor makes a finding that the Claimant has suffered a ‘minor’ injury or makes any other finding adverse to the Claimant.
(c) She is entitled to payment of the maximum costs for legal services in accordance with Regulation 2 of Schedule 1 having regard to work undertaken and on the basis that that amount claimed represents reasonable and necessary costs that she has incurred.
(d) The payment of costs is permitted by the Regulations and therefore satisfies the criteria stipulated by Section 8.10(3) of the Act. Accordingly, a finding must be made that the Claimant is entitled to legal costs representing 16 monetary units from the Insurer in accordance with Regulation 2(1) of Schedule 1 of the Motor Accident Injuries Regulation 2017 and Section 8.10 of the Motor Accidents Injuries Act 2017.
The Insurer relies on written submissions dated 13 May 2021. In summary, the Insurer submits that:
(a) The Claimant’s submissions with respect to the minor injury application, whilst relatively brief, focused largely on procedural issues. The submissions did not sufficiently articulate why an outcome different to the internal review decision would be achieved.
(b) The determinations of Assessors Preston and Samuell were commensurate with the Insurer’s internal review decision.
(c) The application for medical assessment of the minor injury disputes was entirely without merit.
(d) There was no indication that the Claimant’s alleged injuries would fall outside the classification of ‘minor’. The Claimant’s Solicitor ought to have identified this before putting forward the unsuccessful application.
(e) Whilst injured people have a right to have medical disputes determined by a Medical Assessor, there is no automatic entitlement to recover legal costs, particularly the maximum amount of legal costs in unmeritorious matters such as this.
(f) Consideration ought to be given to the amount of work completed and effort exerted by the Claimant’s Solicitor. There is little evidence available to demonstrate that the Claimant’s Solicitor has demonstrated any genuine legal expertise.
(g) The Claimant’s Solicitor did not provide a schedule itemising the tasks for which the costs were incurred with respect to the application for medical assessment. The Claimant’s Solicitor did not make submissions pertaining to the tasks with respect to which the costs claimed relate.
(h) It is not in line with the objects of the Act to award the maximum amount of costs in a medical dispute, or at all, in the absence of evidence of exceptional circumstances, application of legal expertise, or considerable work undertaken.
(i) Maximum costs may be awarded in circumstances where the legal representative has put significant and justified time and effort into the application. In this instance, there has been minimal effort exerted with respect to formulating arguments in support of the application.
(j) If the Commission finds that there should be an allowance for costs, only a minimal allowance be awarded. Given the brief submissions, which largely focused on procedural issues, and in light of the outcome of the medical assessments being commensurate with the Insurer’s internal review decision, it would not be appropriate to award the maximum costs claimed.
(k) The Claimant should only recover $1,000 plus GST for the minor injury application.
Determination
There was a dispute between the Claimant and the Insurer about whether physical and psychological injuries she says were caused by the accident were minor injuries. Whether her injuries were minor injuries for the purposes of the MAI Act constituted ‘medical assessment matters’[5] that were the subject of a ‘medical dispute’ as defined in s 7.17 of the MAI Act. The disputes were each the subject of a ‘medical assessment’; the physical injury dispute was assessed by Assessor Preston and the psychiatric/psychological injury dispute by Assessor Samuell.
[5] Sch.2 cl. 2(e) MAI Act.
The Claimant’s entitlement to recover costs is Governed by Part 8 of the MAI Act. In accordance with s 8.10 she is (subject to that section) entitled to recover from the Insurer the reasonable and necessary legal costs, and other costs and expenses, incurred by her in connection with the claim.[6] She is only entitled to recover from the Insurer reasonable and necessary legal costs incurred by her if payment of those costs is permitted by the regulations or the Commission. The regulations permit the recovery of costs in connection with a medical assessment.[7] The Claimant does not seek an exceptional costs order from the Commission in accordance with s 8.10(4).
[6] s 8.10(1).
[7] Sch 1 cl. 2 Motor Accident Injuries Regulation 2017.
Schedule 1 cl. 2(1) of the regulation is in the following terms:
“2 Medical disputes
(1) The maximum costs for legal services provided to a claimant or an insurer in connection with a medical assessment under Division 7.5 of the Act are 16 monetary units (to a maximum of 60 monetary units per claim).”
As can been seen, the regulations allow for payment of costs for legal services in connection with a ‘medical assessment’ up to 16 monetary units subject to a maximum of 60 monetary units per claim.
In this matter there were two medical assessments, one in relation to physical injuries and a second in relation to psychological/psychiatric injuries. I have to determine the Claimant’s reasonable and necessary costs incurred in connection with each medical assessment.
The Claimant argues that she should recover her reasonable and necessary legal costs on the basis of the maximum allowed by the regulations for one medical assessment (16 monetary units). The applicable monetary unit is $102.06. Accordingly, the maximum is $1,633.00.
I agree with the Insurer’s submission that there is no automatic entitlement to recover the regulated maximum. The maximum sets a cap on the reasonable and necessary costs that can be recovered. The maximum can only be recovered if it represents the reasonable and necessary costs in connection with the assessment.
I do not agree with the Insurer’s submission that the maximum should only be allowed in exceptional circumstances. Further, success is not a prerequisite for the Claimant to recover her legal costs in connection with the medical assessments.[8]
[8] AAI Limited trading as GIO v Moon [2020] NSWSC 714 at [82].
The Claimant has not itemised or particularised the legal work performed in connection with the medical assessments. In determining her reasonable and necessary costs I am left to form an impression of that work from the evidence relied on by the parties in these proceedings.
I am not persuaded that the application was without merit, as submitted by the Insurer. The Claimant has a complicated medical history. Her application had support from treating practitioners. I note, for example, Huy Anh Nguyen, Clinical and Forensic Psychologist, diagnosed that Claimant as suffering post-traumatic stress disorder as a consequence of the accident. The Insurer’s internal review decision in relation to the minor injury dispute referred to this diagnosis but did not accept it.[9]
[9] GIO Internal Review Determination 29 January 2019.
The Insurer having determined that her only injuries resulting from the accident were minor injuries, the Claimant was entitled to have the minor injury disputes determined by an Assessor. The issue was of particular importance as her entitlement to statutory benefits after the first 26 weeks post accident hinged on the resolution of the minor injury disputes.[10]
[10] ss 3.11(1)(b) & 3.28(1)(b) MAI Act.
I have considered the submissions relied on by the parties together with the material lodged in relation to the medical assessments. I note in particular:
(a) A single application was filed in relation to both medical assessment matters.
(b) My impression of the forensic judgement exercised by the Claimant’s lawyers in the preparation of submissions with respect to each matter and the selection of documents provided with the application.
(c) The Claimant’s lawyers would have been required to review the Insurer’s reply lodged in response to the application.
(d) The Claimant’s lawyers would have been required to take her instructions in relation to the application.
(e) Review of the Assessors’ certificates and reasons would have been required, the outcome of the application communicated to the Claimant and instructions taken.
In all the circumstances, I find that the Claimant’s reasonable and necessary costs in connection with the medical assessments that she is entitled to recover from the Insurer are as follows:
(a) In relation to the medical assessment of the minor injury dispute relating to physical injuries $500plus GST.
(b) In relation to the medical assessment of the minor injury dispute relating to psychological injuries $700plus GST.
Brett Williams
Member (Motor Accidents Division) | Merit Reviewer
Personal Injury Commission
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