ACA v GIO
[2021] NSWPICMR 30
•13 July 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | ACA v GIO [2021] NSWPICMR 30 |
| APPLICANT: | ACA |
| RESPONDENT: | GIO |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 13 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit Review; dispute about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); claimant injured in motor accident; insurer calculated claimant’s PAWE; insurer determined claimant had capacity to return to his pre-accident employment as a food delivery driver and accordingly, weekly benefits would cease; internal review affirmed insurer’s decision; earning capacity and calculation of PAWE disputed by claimant; Medical Assessor determined claimant had regained capacity to return to pre-accident employment; claimant agreed to insurer’s decision regarding calculation of PAWE however disputed decision of Medical Assessor; whether jurisdiction to continue as a merit review; Held- no jurisdiction to review the decision of the Medical Assessor. |
| DETERMINATIONS MADE: | 1. The application for a single merit review is dismissed on the basis: (a) the Claimant has now agreed to the Insurer’s decision regarding calculation of his pre-accident weekly earnings (PAWE), and (b) there is no jurisdiction to conduct a merit review of the decision of Medical Assessor Home dated 2 December 2020. |
Background
There is a dispute between ACA (the Claimant) and the Insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the 2017 Act.
The Claimant was injured as a result of a motor accident on 30 June 2019.
On 25 July 2019 the Insurer calculated the Claimant’s PAWE to be $660.52 per week based on gross earnings during the period 21 December 2018 to 29 June 2019.
On 17 July 2020 the Insurer advised the Claimant that the Insurer had determined the Claimant had capacity to return to his pre-accident employment as a food delivery driver and accordingly, weekly benefits would cease on 14 August 2020.
On 29 July 2020 the Insurer issued their internal review decision in which the Insurer confirmed their decision that the Claimant was deemed fit to return to his pre-accident employment.
The Claimant disputes the internal review decision of 29 July 2020 regarding his earning capacity and also disputed calculation of his PAWE. He applied for a merit review of both these disputes.
On 15 September 2020 a teleconference took place between the parties, conducted by Merit Reviewer Ana Jaglic. At this teleconference it was determined that the dispute as to whether the Claimant had capacity to return to his pre-accident employment should be referred to a Medical Assessor.
On 2 December 2020 a further teleconference was arranged with Merit Reviewer Jaglic. The Claimant did not appear and as a result, the teleconference was adjourned to 18 December 2020.
On 2 December 2020 Medical Assessor Alan Home issued a Certificate under section 7.23(1) of the 2017 Act in relation to the Claimant’s earning capacity. Medical Assessor Home determined that the Claimant had regained capacity to return to his pre-accident employment.
On 18 December 2020 the Claimant advised Merit Reviewer Jaglic at a further teleconference on this date that he intended to apply for a review of the decision of Medical Assessor Home.
It was initially understood that on 23 December 2020 the Claimant lodged an application with the then Dispute Resolution Service for a review of the decision of Medical Assessor Home dated 2 December 2020. However, the status of that application is unknown and it is now unclear whether the application was in fact formally lodged. This is a matter for the Claimant to follow up.
On 9 April 2021, after this merit review was transferred to me, I conducted a teleconference with the parties.
During this teleconference the Claimant advised he no longer disputes the Insurer’s calculation of his PAWE and that he accepts his PAWE is $660.52.
On 9 April 2021 I issued an interim report in which the Claimant’s agreement to calculation of his PAWE at $660.52 was confirmed.
Submissions
The Claimant raised two disputes in this merit review application, as follows:
(a) calculation of his PAWE, and
(b) the degree of impairment of his earning capacity that has resulted from the injury caused by the motor accident.
On 9 April 2021 the dispute about calculation of the Claimant’s PAWE was resolved by way of agreement by the Claimant that his PAWE is $660.52.
Since filing his application for a merit review the dispute about the degree of impairment of earning capacity has been referred for a medical assessment and a medical assessment decision has been issued by Medical Assessor Home. The Claimant disputes Medical Assessor Home’s decision.
Accordingly, the only remaining issue in dispute is the degree of impairment of the Claimant’s earning capacity as a result of the injury caused by the motor accident. As noted, this dispute has been the subject of a medical assessment by Medical Assessor Home and is currently either the subject of a pending application for a review of Medical Assessor Home’s decision by a review panel pursuant to section 7.26 of the 2017 Act, or is intended to the subject of such application for review under section 7.26.
On 12 July 2021 I conducted a further telephone conference with the parties. During this teleconference the Claimant confirmed:
(a) he agreed his PAWE at the figure of $660.52, and
(b) the only remaining dispute is the degree of impairment of his earning capacity and in this regard, he disputes Medical Assessor Home’s decision of 2 December 2020.
At the teleconference on 12 July 2021 the parties were invited to make submissions as to whether the remaining issue in dispute regarding the degree of impairment of earning capacity may properly continue as a merit review or whether there is no jurisdiction.
Both parties agreed there is no jurisdiction to conduct a merit review of the decision of Medical Assessor Home in the circumstances.
Reasons
Jurisdiction
Schedule 2 of the 2017 Act outlines the matters which are merit review matters, the matters which are medical assessment matters and the matters which are miscellaneous claims assessment matters.
Matters which are merit review matters are listed in schedule 2, clause 1. A dispute about the degree of impairment of earning capacity is not listed as a merit review matter in clause 1.
A dispute about 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 pursuant to schedule 2, clause 2(d).
The dispute was properly referred to Medical Assessor Home as a medical assessment matter under schedule 2, clause 2(d) and section 7.20 of the 2017 Act. If there is a dispute about Medical Assessor Home’s decision under section 7.20 of the 2017 Act then the proper course is for the Claimant to make an application for a review of Medical Assessor Home’s decision by a review panel under section 7.26, as he has done or intends to do.
A review panel in respect of a medical assessment must be constituted by two medical assessors and one member of the Commission assigned to the Motor Accidents Division (section 7.26(5A)). There is no jurisdiction to conduct a single merit review of Medical Assessor Home’s decision. Accordingly, this application for a merit review is dismissed on the basis:
(a) the Claimant has now agreed to the Insurer’s decision regarding calculation of his PAWE, and
(b) there is no jurisdiction to conduct a merit review of the decision of Medical Assessor Home dated 2 December 2020.
To the extent the Claimant disputes Medical Assessor Home’s decision dated 2 December 2020 he should make an application for review by a review panel under section 7.26.
Conclusion
The application for a single merit review is dismissed on the basis:
(a) the Claimant has now agreed to the Insurer’s decision regarding calculation of his pre-accident weekly earnings (PAWE), and
(b) there is no jurisdiction to conduct a merit review of the decision of Medical Assessor Home dated 2 December 2020.
Legislation and Guidelines
In making this decision, I have considered the following:
· the application, reply and supporting documentation;
· the 2017 Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017(the Regulations).
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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