Al-Masri v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 279
•2 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Al-Masri v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 279 |
| CLAIMANT: | Abdallah Al-Masri |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Stephen Boyd-Boland |
| DATE OF DECISION: | 2 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment matter; late claim for statutory benefits failure to provide a certificate from a treating medical practitioner such as a Certificate of Fitness; sections 6.13 and 6.15 of the Motor Accident Injuries Act 2017 (2017 Act) and clause 4 of the Motor Accident Guidelines; Held – within the provisions of section 6.13(2) of the 2017 Act the claim is not “made” until the claimant has given notice and that notice includes providing a certificate from a treating medical practitioner such as a Certificate of Fitness. |
| DETERMINATIONS MADE: | Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 1. For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits. 2. Effective Date: This determination takes effect on 2 June 2022. 3. Legal Costs: The amount of the Claimant’s costs has not been determined. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(k) of the Motor Accident Injuries Act 2017 (the Act) about statutory benefits claim time limits.
The motor accident occurred on 1 June 2021.
An Application for Personal Injury Benefits Claim Form was completed on 1 August 2021.
The Insurer asserts that it received the Application for Personal Injury Benefits Claim Form on about 2 August 2021.
A Certificate of Capacity dated 25 August 2021 was provided. The claimant asserts it was provided on 25 August 2021 and the Insurer asserts it was provided on 26 August 2021.
The Insurer issued a liability notice on 1 September 2021.
On 3 November 2021 the Insurer made a determination in relation to entitlement to weekly benefits.
On 25 August 2021 the Claimant sought an internal review of the decision.
The Insurer did not conduct an internal review.
A Dispute Resolution Service Application Form was completed by the Claimant on or about 16 November 2021.
10. On or about 14 December 2021 the Insurer lodged a Dispute Resolution Service Reply.
11. A Teleconferences was conducted on 11 March 2022 when it was agreed that the Claimant would provide further submissions by 18 March 2022 and the Insurer would provide further submissions by 25 March 2022. Following the provision of those submissions that a determination would be made on the papers.
Documents considered
12. I have considered the documents provided in the application and the reply and any further information provided by the parties.
13. At the Assessment Conference the parties confirmed that the documents to be relied upon consisted of an Application, A1 to A8 inclusive and AD1 from the Claimant and a Reply and R1 from the Insurer.
Submissions
14. The Claimant's submissions were set out in the written submissions dated 26 October 2021 and 14 March 2022.
15. The Insurer's submissions were set out in the written submissions dated 14 December 2021. Having considered the further submission of the claimant, the Insurer elected to make no further submissions.
16. Neither party takes any issue with the facts relied upon with the exception of when the Certificate of Capacity was provided.
17. There is no dispute that the Certificate of Capacity was dated 25 August 2021.
18. The claimant asserts it was “served” on 25 August 2021 and the Insurer maintains that it was provided on 26 August 2021.
19. The parties take a different view of the application of the various provisions.
REASONS
The Assessment
20. An Assessment was undertaken on the paper.
21. The parties agreed that the dispute relates to a reviewable decision under Schedule 2(3)(k) of the Motor Accident Injuries Act 2017 about statutory benefits claim time limits.
22. The Insurer contends that;
a. s 6.13(1) of the Act and clause 4.15 of the Motor Accident Guidelines provide that a claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates;
b. s 6.13(2) of the Act and clause 4.15 of the Motor Accident Guidelines provide that if a claim for statutory benefits is not made within 28 days weekly payments of statutory benefits are not payable in respect of any period before the claim is made;
c. s 6.13(5) of the Act provides that notice of a claim is taken to be given to the insurer or other person to whom it is required to be given if the notice is given in accordance with s 6.15;
d. s 6.15(3)(a) of the Act states that the Motor Accident Guidelines may require the claimant to provide a certificate from a treating medical practitioner; and
e. clause 4.21 of the Motor Accident Guidelines requires the claimant to provide a certificate from a treating medical practitioner.
23. The Claimant contends
a. Section 6.13 provides that where a claim form is lodged outside of the 28 days, that the statutory benefits are payable from when the claim form is lodged.
b. The claimant does not dispute that a certificate of capacity must be furnished, what the claimant disputes is the interpretation of section 6.13 adopted by the insurer.
Legislative framework and approach
24. Section 6.13 provides:
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(2) If a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made.
…
(5) Notice of a claim is taken to be given to the insurer or other person to whom it is required to be given if the notice is given in accordance with section 6.15.
25. Section 1.4 provides:
"claim" means a claim for statutory benefits or a claim for damages.
26. It is not disputed that this claim is a claim for statutory benefits.
27. Section 6.15 provides:
(1) A notice of a claim under this Division is to be given in the manner and containing the information required by the Motor Accident Guidelines.
…
(3) The Motor Accident Guidelines may require the claimant to do any one or more of the following--
(a) furnish a certificate of a treating medical practitioner relating to the claim,
28. In my view the effect of Section 6.15 is to require compliance with the terms of the Motor Accident Guidelines. The phrase “is to be given” is used in a prescriptive manner.
29. In my view the effect of s 6.13(5) and s 6.15(1) is that the notice of the claim must be given in the manner and containing the information required by the Motor Accident Guidelines.
30. Contrary to the submissions made by the Claimant, reference in s 6.13 is not to a “claim form” but to a “claim”.
31. The provisions of clause 4 of the Motor Accident Guidelines then provide further details.
32. Clause 4.15 provides that to make a claim for statutory benefits, a claimant must give notice of a claim.
33. Clause 4.18 provides alternative forms of notice.
34. Clause 4.19(a) provides detail for a claim for statutory benefits for a personal injury.
35. Clause 4.19(a) provides:
In claims for personal injury, a claimant must also provide a certificate from a treating medical practitioner such as a Certificate of Fitness.
36. When is a claim for Statutory Benefits Made?
37. The effect of Clause 4.15 of the Motor Accident Guidelines is that a claim for statutory benefits is made when the claimant gives notice of a claim.
38. What is required to give notice of a claim for statutory benefits?
39. Some issue arises with Clause 4.19 and s 6.15(3), whilst s 6.15 uses the expression “may” that word is used in relation to whether the Motor Accident Guidelines “may” include certain specific provisions. The discretion is given to those drafting the Motor Accident Guidelines. Consistent with the specific terms of s 6.15(3)(a) the Motor Accident Guidelines have included a provision to the effect that in relation to a claim for statutory benefits for a personal injury a claimant must also provide a certificate from a treating medical practitioner such as a Certificate of Fitness.
40. In my view s 6.15(3) does not provide a discretion as to whether “a certificate from a treating medical practitioner such as a Certificate of Fitness” is required as part of making a claim.
41. In my view the combined effect of the various sections and clauses of the Motor Accident Guidelines is that in giving notice of a claim, in relation to a claim for statutory benefits for a personal injury, a claimant must also provide a certificate from a treating medical practitioner such as a Certificate of Fitness.
42. Until this is done, the claimant has not satisfied the requirements of the various sections and clauses of the Motor Accident Guidelines to give notice of the claim.
43. As a consequence, within the provisions of s 6.13(2) the claim is not “made” until the claimant has given notice and that notice includes providing a certificate from a treating medical practitioner such as a Certificate of Fitness.
44. There is some uncertainty as to whether that was on 25 August 2021 or on 26 August 2021.
Costs
45. I will allow the parties sought the opportunity to address the costs issues following the determination.
46. At this time, I make no order as to costs.
Legislation
47. In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW) ("the Act")
• Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020
• Motor Accident Guidelines
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