BNG v AAI Limited t/as GIO
[2024] NSWPICMR 16
•5 July 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | BNG v AAI Limited t/as GIO [2024] NSWPICMR 16 |
| CLAIMANT: | BNG |
| INSURER: | AAI Limited t/as GIO |
| MERIT REVIEWER: | Belinda Cassidy |
| DATE OF DECISION: | 5 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; suspension of payments due to claimant’s failure to provide certificates of fitness; insurer sent suspension notice and subsequently suspended payments; claimant had been in gaol on remand and was released after charges dismissed; claimant sought recovery of back payments; insurer refused; claimant referred dispute for merit review; Held – claimant had not complied with section 3.15(1) of the Act; the insurer had not communicated with the claimant the need to provide the certificate and should not have suspended weekly payments; the insurer had also not complied with clause 4.61 of the Motor Accident Guidelines (the Guidelines) as it had not contacted the claimant; the insurer had not complied with clause 4.62 of the Guidelines and enquired as to claimant’s excuse; claimant’s excuse for non-compliance reasonable; insurer’s decision to suspend not lawful and set aside; claimant entitled to weekly payments during period of unlawful suspension. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Having considered the evidence and the submissions of the parties, I determine: 1. The reviewable decision is set aside as the insurer was not entitled to suspend the claimant’s weekly payments under s 3.15(7). 2. The correct and preferable decision is that BNG is entitled to weekly payments on and from 5 February 2024 to when they resumed on or about 2 May 2024. |
STATEMENT OF REASONS
INTRODUCTION
BNG was involved in a motor accident on 14 August 2022. He was a passenger in a motor vehicle that was hit from behind. He injured his neck, left shoulder and back in the accident. BNG developed a psychiatric condition after the accident.
On or about 23 August 2022 BNG lodged an application for statutory benefits with GIO under the Motor Accident Injuries Act 2017 (the MAI Act). GIO accepted that claim and paid BNG his statutory benefits.[1]
[1] The insurer’s first liability notice is dated 25 August 2022.
GIO accepted BNG’s psychiatric injury was a non-threshold injury and BNG’s statutory benefits therefore continued beyond the first 26 weeks after the accident.[2]
[2] The insurer at first denied liability on the basis that the claimant had only minor injuries on 17 November 2022 however on 18 July 2023 the insurer wrote to the claimant accepting that liability for ongoing benefits was accepted.
A dispute has arisen in the claim about payment of the claimant’s weekly statutory benefits for the period 5 February to 2 May 2024. The claimant has referred that dispute to the Personal Injury Commission (the Commission) for Merit Review pursuant to Division 7.4 of the MAI Act. The reviewable decision is GIO’s decision to suspend BNG’s weekly benefits.
Schedule 2, cl 1(d) of the MAI Act declares a dispute about the suspension of weekly payments of statutory benefits to be a merit review matter for the purposes of Part 7 of the Act (the dispute resolution provisions).
A delegate of the President of the Commission allocated the proceedings to me for determination. I held a preliminary teleconference with the parties on 3 July 2024 and after discussing the matter, decided to determine the matter on the documents uploaded to the Commission’s file and the information provided to me by the parties at the teleconference.
BACKGROUND TO THE DISPUTE
The insurer’s submissions suggest that up until 4 February 2024 the claimant was paid weekly benefits in accordance with medical certificates. Relevant to this dispute, Dr Shinwari had issued a Certificate of Fitness dated 5 January 2024 which certified the claimant unfit for work to 4 February 2024.[3]
[3] Document R4 at page 17 of the claimant’s bundle.
The insurer’s submissions document efforts made to contact the claimant on 23 January, 24 January, 14 February, 15 February and 23 February 2024. These were said to be for the purpose of obtaining a fresh certificate of fitness to enable the claimant’s benefits could continue. These enquiries involved telephone calls, SMS messages and voicemail messages. Contact was made with the claimant’s general practitioner (GP) who advised he had not seen the claimant nor made any recent appointments. The GP however gave the claims officer a mobile phone number which the insurer says it had not had before. Phone calls and messages were then left with that number. The insurer’s rehabilitation consultant was reported to have said in an email that she had made eight attempts to contact the claimant about a vocational assessment. She had contacted the claimant’s psychologist who advised that he too had not been able to contact the claimant.
A letter from GIO dated 16 February 2024 was addressed to the claimant at his Cabramatta address. This letter said “…to be able to continue making weekly benefit payments to you, we urgently need you to send us a completed Certificate of Fitness. We tried to call you to discuss this, but we couldn’t get hold of you.”
On 23 February 2024 GIO wrote another letter to the claimant at his Cabramatta address referring to the previous letter and saying, “…you have failed to comply with our notice and your weekly benefit payments are now suspended. We tried to call you to discuss this, but we couldn’t get hold of you.” The reason for suspending the weekly payments was said in the letter to be because of the failure to provide a completed Certificate of Fitness. The letter advises that payments will be suspended until there was compliance and “…you will lose any entitlement to weekly benefit payments during the suspension period.”
Ms Papaspiros said at the teleconference that both of these letters were sent by mail and email and a copy was sent to the claimant’s lawyers, CMC Lawyers.
On 10 May 2024, after providing a Certificate of Fitness from Dr Shinwari dated 30 April 2024, the claimant sent an email to the insurer (from a gmail address) which said:
“I need to know if I could get backed paid from when I was last suspending in Feb of this year 2/24 to 4/24 or I need something in writing stating ‘why I can’t.’ Please reply asap.”
On 13 May 2024 the claims officer sent an email to the claimant saying:
“Once a suspension letter is issued, back payment does not apply. I have attached the letter for you to read and if you disagree you can request an internal review as stated in the letter.”
Ms Papaspiros confirmed at the teleconference that the attachment to that email was the GIO’s letter of 23 February 2024.
The claimant responded saying:
“I do not agree with [the letter] as I was held on remand during the period of January 9 to April 29th 2024 and was unable to be contacted. The charges made against me were withdrawn and dismissed whereby I was released without conviction.”
The claimant requested an internal review of this decision and said he was able to provide a certificate of capacity, was still suffering from post-traumatic stress disorder, was incapable of work during this time and that his mental health has deteriorated. He says he attended his GP the day after his release.
The claimant provided a further Certificate of Fitness from Dr Shinwari certifying him as unfit for work from 4 February to 30 April 2024.
The internal review decision was made by Ms Ibrahim and is dated 27 May 2024. It refers to a number of documents and sets out a series of background facts and other matters which include:
(a) the claimant’s pre-accident weekly earnings were assessed at $2,116.42 per week [4];
(b) the attempts to contact the claimant were detailed at [6]-[12];
(c) the insurer received Dr Shinwari’s certificate of fitness dated 21 May 2024 on that day, and
(d) statutory benefits recommenced on 2 May 2024 [17].
The insurer cites the relevant provisions of the MAI Act and the Motor Accident Guidelines (the Guidelines) and then provides the following:
(a) s 3.15(7) enables an insurer to suspend weekly payments if there is a failure to provide a certificate of fitness if it is not provided within seven days after the requirement is communicated;
(b) cls 4.61-4.63 set out the steps the insurer must take which in this case included a number of phone calls and letters;
(c) “I consider that the GIO claims team complied with the requirement of the Act and Guidelines”;
(d) a Certificate of Fitness has now been provided and s 3.15(1)(a) has been complied with, and
(e) s 3.15(8) says a person forfeits entitlements during the period of suspension.
Ms Ibrahim then says:
“There is nothing in the Act or Guidelines that affords discretion in this regard. Therefore, despite the updated Certificate of Fitness, you are not entitled to weekly benefits for the period when the suspension was in place. In other words, you are not entitled to weekly benefits from 26 February 2024 – 2 May 2024.”
The internal reviewer affirmed the decision and says, that GIO was entitled to suspend his weekly payments.
EVIDENCE CONSIDERED
Claim form and claim documents
The claimant’s Application for personal injury benefits provides a mobile phone number, hotmail address and a home address at a unit in Cabramatta. He indicated his contact preference by ticking two boxes – mobile and email.
He provides a description of the accident, his injuries and identifies his employer.
The email from Chloe Devine, rehabilitation consultant and psychologist says:
(a) she had attempted to contact the claimant about his vocational assessment;
(b) she had attempted to contact the claimant eight times by phone, SMS and email;
(c) she had contacted the claimant’s psychologist who indicated he had also not been able to contact him, and
(d) she believed “updated contact details will need to be obtained for BNG before we can move forward in facilitating rehabilitation services”.
Ms Devine also says in this email:
“As BNG is homeless, we are unable to send him a letter providing him with the details of an appointment …”
The claimant’s application for Merit Review notes his street address as “homeless” and the suburb Cabramatta. He provides a postal address (PO Box in Cabramatta), a mobile phone number (different to that in the claim form) and an email address (the same hotmail address as in his claim form). He says he does not have a legal representative.
In his application he explains what the dispute is about saying:
“Dispute issue payment from 04/02/24 to 29/04/24 has not been payed to me. I have now have certificate of capacity covering those dates. I am now homeless and I need this money so I could get back on my feet as I’ve lost everything.”
Medical documents and reports
Dr Shinwari’s 5 January 2024 certificate of capacity provides an address for the claimant and his Medicare number. He diagnoses “MVA – neck and left upper back pain, left shoulder pain, PTSD, depression.”
He indicates there are no pre-existing factors which might be relevant to the condition.
Dr Shinwari provides the following details of the management plan and referrals for the period:
(a) review by psychiatrist – PTSD [post-traumatic stress disorder], major depressive disorder;
(b) analgesia if required and physiotherapy, EP [electrophysiology] review;
(c) independent assessor review, and
(d) psychologist psychiatrist review.
The doctor certified the claimant as having no current work capacity for any employment from 5 January 2024 to 4 February 2024.
Dr Shinwari completed another Certificate of Capacity dated 30 April 2024. It is in almost identical terms but adds “Lexapro 10 mg daily” to the management plan. He certifies the claimant as having no current work capacity from 30 April to 29 May 2024.
Dr Shinwari completed a further certificate of capacity dated 21 May 2024 with many of the same details. He says the claimant has no work capacity for any employment from 4 February to 30 April 2024.
All of the certificates include a declaration from the claimant that he has not engaged in any form of work.
Medical Assessor Cameron determined on 10 July 2023 that the claimant had sustained threshold injuries only to his neck, lower back and left shoulder. BNG was, at that time, represented by a solicitor.
Medical Assessor Cameron noted that the claimant travelled to the appointment with his partner and infant child but that he was currently without permanent accommodation. He had been working at the time of the accident in the demolition industry.
The claimant reported being a front seat passenger in a car that was hit from behind. He said he developed shoulder and neck pain and consulted his GP. On examination Medical Assessor Cameron noted the claimant was in some psychological distress and the claimant indicated he had been diagnosed with post-traumatic stress disorder.
The claimant has not had his psychological injury assessed by the Commission. The insurer’s liability notice accepted he had a non-threshold psychiatric disorder on the basis of his treating psychiatrist’s report.
Evidence at the preliminary conference
BNG told me:
(a) from 9 January to 29 April 2024, he was in prison on remand for charges that were later dropped;
(b) he was not allowed to have his mobile phone while in prison which was why he did not get the insurer’s calls and he was not allowed a laptop or other computer which was why he did not receive the insurer’s emails;
(c) BNG said while he was in prison his mobile phone was disabled and he had to reconnect after he was released and obtained a new phone number. He also said after he was released he could not recover his password to enable him to use the internet and had to communicate for a while through a gmail account (as opposed to his hotmail account);
(d) he said he did not receive the letters of 16 and 23 February 2024 sent to his unit in Cabramatta and that he had been evicted from that unit;
(e) while in prison he had no access to the internet. He said that he was allowed to make phone calls, but he had to book them through the authorities, that they were limited to seven minutes each and that he had to provide names, numbers and addresses for the people he was calling none of which was easily accessible to him while he was in prison;
(f) he did manage to ring the insurer on 8 March 2024 to let them know that his circumstances had changed and that he was in gaol. He said he needed the payments to continue as he had bills that needed to be paid;
(g) he could not get an earlier call to the insurer. He had to book the call and calls are limited (in number and in time) and he had to obtain pre-approval;
(h) BNG said the insurer sent a Certificate of Fitness to the gaol care of a support worker and the claimant said he made an appointment to see the GP who came to the gaol once a week so that he could get a Certificate of Fitness signed. He said he was put on a waiting list, but his turn did not come up before he was released;
(i) in relation to GIO contacting CMC Lawyers about the suspension of his benefits, he said he had not heard from them for a long time and at the time he was incarcerated he believed he had no one acting for him in respect of his claim, and
(j) BNG said while he is in temporary accommodation, he is still homeless.
Ms Papaspiros says that statutory benefits paid to or on behalf of BNG total $150,000.
After the preliminary conference, Ms Papaspiros provided a copy of a file note which is titled “PC fr CL” which, in the light of the conversation at the preliminary conference, I take to mean “phone call from claimant”. The file note includes the following:
(a) the claimant had been incarcerated since 8 January 2024 which is why he had not been able to see his own doctor and get an updated certificate;
(b) he needs the payments as they were supporting his family;
(c) he was told GIO needs a Certificate of Fitness and queried whether he could get this while in gaol;
(d) “a corrective services officer came in the room and [advised] there is a GP that comes in on Thursday that [claimant] can see”;
(e) a support worker asked the claims adviser to email a blank claim form to her;
(f) the claims adviser explained as wages were suspended there will be no back payment they can only be reinstated, claimant understood;
(g) the claimant asked about his damages claim and the claims advisor was going to provide the support workers email to the lawyers and “get them to update”, and
(h) the claims advisor said, “as he is in gaol and not attending treatment he could be issued with a notice as he is failing to mitigate his losses by not attending treatment.”
Ms Papaspiros also provided a copy of an email from Chelsea, a GIO claims adviser. It is addressed to the support worker with a copy sent to Ms Mancini at CMC Lawyers. It is dated 8 March 2024 and refers to an expired Certificate of Capacity of 8 March 2024. It says that no updated certificate has been received and requesting a fully completed certificate. It also advises “your weekly benefits will be suspended” until a completed certificate is provided. At that time of course, BNG’s payments had already been suspended.
LEGISLATIVE FRAMEWORK
General provisions
The MAI Act establishes from 1 December 2017:
(a) a scheme of compulsory insurance for all vehicles registered in New South Wales, and
(b) a scheme of statutory benefits and lump sum compensation (damages) for persons injured in motor accidents in New South Wales.
Ms Papaspiros indicated that the claimant had made a damages claim however the claim that is before me is BNG’s claim for statutory benefits under Part 3 of the MAI Act.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act, and treatment and care benefits pursuant to Division 3.4.
Division 3.3 includes provisions relating to entitlement periods and rates of payment during those periods, the minimum and maximum amounts of payments, the indexation of payments and frequency of payments.
Suspension of payments
Section 3.15 concerns the requirements for evidence as to fitness for work as follows:
“(1) An injured person must provide to the insurer—
(a) certificates of fitness for work in accordance with this section in respect of the period in respect of which the person is entitled to weekly payments of statutory benefits under this Division, and
(b) a declaration in accordance with the Motor Accident Guidelines as to whether or not the person is engaged in any form of employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section.
…
(3) A certificate of fitness for work must—
(a) for a first certificate provided by the injured person to the insurer—be a certificate given by a treating medical practitioner in accordance with the Motor Accident Guidelines, and
(a1) for a second or subsequent certificate provided by the injured person to the insurer—be a certificate that complies with the requirements specified in the Motor Accident Guidelines, including the form of the certificate, and
(b) certify as to the person’s fitness for work and whether the person has current fitness for work or has no current fitness for work during the period, not exceeding 28 days, stated in the certificate, and
(c) specify the expected duration of the person’s unfitness for work.
(3A) …
(5) A certificate of fitness for work is of no effect to the extent that it relates to a period that is more than 90 days before the certificate is provided by the injured person to the insurer.
(6) An insurer is not required to make weekly payments of statutory benefits to which a person is entitled to under this Division until the person has complied with subsection (1).
(7) If a person fails to comply with a requirement under this section within 7 days, or another period prescribed by the regulations, after the requirement is communicated to the person by the insurer, the insurer may, subject to the Motor Accident Guidelines, suspend payment of weekly payments of statutory benefits to the person under this Division for the period the failure to comply continues.
(8) The person forfeits the person’s entitlement to weekly payments of statutory benefits during the period of a suspension.”
Essentially, if a person is not fit to work, they provide a certificate to support that unfitness and the insurer is required to make weekly payments in accordance with that certificate.
Section 3.15(5) says that the certificate of fitness has no effect in respect of a period more than 90 days before the certificate is provided to the insurer. BNG’s pre-incarceration certificate covered a period until 4 February which is within the 90-day period before the 30 April 2024 post-incarceration certificate issued by Dr Shinwari.
An insurer is “not required” to pay benefits until the Certificate of Fitness is provided
(sub-s 6) and payments “may” be suspended if an injured person has failed to provide a certificate (sub-s 7). If payments are suspended, the claimant cannot recover them (sub-s 8). The suspension of benefits is said to be subject to the Guidelines.Weekly benefits cease at certain times in accordance with ss 3.11 and 3.12. Statutory benefits can be terminated at retirement age under s 3.13. There are other provisions affecting the entitlement to benefits and s 3.19 provides for the notice that is required to be given before payments are discontinued or reduced. That section is not applicable to BNG’s situation as his payments were suspended not discontinued or reduced.
There is no specific provision in Division 3 or elsewhere that provides for the suspension of benefits while a person incarcerated.
The Motor Accident Guidelines
The relevant provisions in the Guidelines include the following under the heading “non-compliance with providing evidence of fitness for work”:
“4.61 Before an insurer can suspend weekly payments for failure of the claimant to comply with requirements for evidence as to fitness for work, the insurer must:
(a) contact the claimant (via the claimant’s preferred method of communication) to ensure that the claimant is aware of their duty to provide this evidence
(b) clearly state to the claimant the consequences of not providing the evidence
(c) provide the claimant with a reasonable time within which to comply
(d) if the claimant is a participant in the Lifetime Care & Support Scheme, the insurer must contact the Lifetime Care & Support Authority of NSW …
(e) provide the claimant with contact details of the Authority.
4.62 If the claimant continues to fail to comply without a reasonable excuse, a suspension notice giving the claimant seven calendar days to comply must be sent in writing.
4.63 The suspension notice must clearly state the insurer’s reasons for suspending weekly payments, actions the claimant must take to avoid suspension of their weekly payments and the claimant’s rights of review. A copy of this notice must be provided to the claimant’s legal representative where the claimant is legally represented.”
There are further provisions in the Guidelines requiring notices to be provided before benefits are discontinued or reduced.
CONSIDERATION OF THE ISSUES
What is required before payments can be suspended?
In Leydon v Insurance Australia Limited t/as NRMA Insurance,[4] Senior Member Williams dealt with a dispute about the suspension of benefits and the lawfulness of the notification from the insurer. He said (emphasis added):
“[42] In short, cl 4.58 [now 4.62] of the Guidelines required NRMA to provide Mr Leydon with a valid suspension notice, after it had complied with cl 4.57 [now 4.61] of the Guidelines, and after Mr Leydon had failed to comply with the requirement to provide a certificate of fitness that satisfied s 3.15.
[4] [2023] NSWPICMR 7 (7 February 2023).
I agree with Member Williams’ interpretation of the former version of cls 4.61 and 4.62. In my view there is a clear four step process which an insurer must follow before suspending payments:
(a) the claimant must fail to comply with s 3.15(1) and must not have provided the requisite certificate after being notified in accordance with s 3.15(7);
(b) the notification must comply with cl 4.61, that is the claimant must be contacted and advised of the breach, the consequences for continued failure and provide a time to comply (at least seven days in accordance with s 3.15(7));
(c) the insurer must, when the failure continues, then issue a suspension notice that complies with cl 4.62, and must
(d) wait seven days before suspending payments.
The insurer’s internal review decision and submissions relied on in these proceedings state that there is no discretion to pay BNG benefits while his payments were suspended. That is, in my view, a correct interpretation of s 3.15(8) however that must be predicated on there being a lawful suspension of weekly benefits.
Each of the four steps identified in paragraph 57 will now be considered.
Had BNG failed to comply with s 3.15(1)?
There is no dispute that at the time the certificate of fitness dated 5 January 2024 expired (on 4 February 2024) no further certificate of fitness had been provided and no further certificate was provided until 30 April 2024 (for the period 30 April 2024 to 29 May 2024).
A further Certificate of Fitness was provided on 21 May 2024 (for the period 4 February to 30 April 2024).
BNG has now complied with s 3.15(1) in that he has given GIO Certificates of Fitness certifying his unfitness for work for the whole of the period covering 5 January 2024 to 29 May 2024. I understand from the insurer’s submissions and what Ms Papaspiros said at the teleconference that BNG’s payments recommenced from 2 May 2024.
However, at the time when GIO purported to suspend his payments (23 February 2024) BNG was in breach of s 3.15(1) as by that time he had not provided a Certificate of Fitness which would apply beyond 4 February 2024.
Was the requirement communicated to BNG?
The insurer’s letter of 16 February 2024 was headed “we need a certificate of fitness from you” and explains this is to enable the insurer to continue making payments. The letter says GIO needs the certificate by 23 February 2024 and that action would be taken if he did not. This letter appears to be the last in a series of efforts made to contact him and is clearly designed to alert BNG to the s 3.15(1) requirement and draws his attention to the consequence of the continued breach.
This letter was addressed to BNG at an address where he no longer lived. The insurer was on notice that the claimant was homeless. Medical Assessor Cameron refers to it in his July 2023 assessment as did the insurer’s rehabilitation advisor in the email to GIO in January 2024.
Ms Papaspiros said that the letter was also emailed to the claimant and a copy sent to his solicitor.
There is no doubt that GIO attempted to contact BNG and I am satisfied that officers
of GIO made multiple attempts to contact him by phone and text before the letter of 16 February 2024 was sent.Section 3.15(7) requires the insurer to have “communicated to the person” the need to lodge the certificate. In my view the need to lodge the certificate was not communicated to BNG.
The section requires there to have been communication not just attempts to communicate. This is understandable as a claimant’s entitlements to a significant sum of money was at stake. BNG was in gaol, on remand at the time this letter was written and sent, and he had no access to his phone or computer. He said he never received the letters either those sent to him (my mail or email) or the copies sent to his solicitors.
In my view, communication requires two things, a form of dispatch and a form of receipt. Or to put it another way communication by the insurer is required and communication to the claimant must also occur.
The section required the insurer to have communicated with BNG himself, not his lawyer. The words “to the person” are not, for example, qualified with the words “or his representative.” BNG said he had no solicitor acting for him at the time and Ms Papaspiros did not suggest there was any evidence that the solicitor had received the communication and actually passed it on to the client in gaol.
While BNG made contact with the insurer on 8 March 2024 and was made aware at that stage of the need to have a Certificate of Capacity completed, that occurred after the insurer purported to “communicate” with BNG and after his benefits had actually been suspended.
As one of the two pre-conditions required by s 3.15(7) has not been satisfied, in my view the insurer should not have taken the further steps it did on 23 February 2023 to suspend BNG’s benefits.
Did the insurer comply with clause 4.61 of the Guidelines?
Clause 4.61 of the Guidelines provides that “before an insurer can suspend weekly payments … the insurer must …” do at least three things:
(a) contact the claimant which is “to ensure he is aware of his duty” to provide the certificate;
(b) clearly explain the consequences, and
(c) provide a reasonable time to comply.
After those three things have been done, cl 4.62 provides for a suspension notice to be given and for the claimant to have further time (seven calendar days) to comply.
The GIO’s letter of 16 February 2024 gave the claimant seven calendar days to provide the certificate and the letter of 23 February 2024 advised BNG his payments had been suspended. The 16 February 2024 letter therefore appears to be the suspension notice required by cl 4.62.
In my view, GIO appears to have conflated the cl 4.61 “contact” with the cl 4.62 “notice” in the one letter of 16 February 2024.
The insurer has not complied with cl 4.61 because while GIO had tried to contact the claimant, it had not been able to do so and therefore was unable to clearly explain the consequences and provide a reasonable time to comply.
Actual contact is required in my view because the Guidelines make it clear this contact is required “to ensure” that the claimant was “aware of his duty”. The claimant was not aware of the duty because he had not been contacted.
Is there a discretion to suspend payments under s 3.15(7)?
In its internal review, GIO says, in relation to the action taken to suspend BNG’s benefits, “I consider that the GIO Claims Team complied with the requirement of the Act and Guidelines.” The submissions lodged with the Commission were silent as to the lawfulness or otherwise of the suspension. Ms Papaspiros submitted at the preliminary conference that BNG’s payments were lawfully suspended following GIOs attempts to contact him and the 16 February 2024 letter warning him that his benefits would be suspended.
Section 3.15(7) provides that after the injured person has failed to provide a Certificate of Fitness and seven days after they have been communicated with, “the insurer may … suspend payment” (emphasis added).
The wording of this part of the section does not say “must” or “should” or otherwise suggest it is mandatory for payments to be suspended in certain circumstances such as those applying to BNG.
The word “may” in the context of the whole of the section clearly involves a discretion. The insurer was not required to suspend payments because of the absence of an updated certificate. GIO had the power to suspend payments and should have considered whether to do so before taking the action it did.
How is the discretion to be exercised?
Section 3.15(7) provides that the insurer’s discretion to suspend payment is “subject to the Motor Accident Guidelines.”
Clause 4.62 in those Guidelines says that “if a claimant continues to fail to comply without a reasonable excuse, a suspension notice giving the claimant seven calendar days to comply must be sent in writing” (emphasis added).
The evidence before me suggests the insurer made no attempt to ascertain if the claimant had any excuse for failing to comply with the requirement to file the certificate of fitness. The insurer made no enquiry at all as to the why the claimant’s failure continued before sending the purported suspension notice of 16 February 2024. The claimant of course was in gaol and could not be contacted by the insurer.
The excuse or reason BNG now gives for failing to comply is explained in his communication with the insurer, in his application to the Commission and in his evidence to me at the preliminary conference.
From 8 January to 29 April, BNG was in gaol with limited access to communication. He had no access to his own phone and no access to the internet. He was unable to make an appointment with his own GP.
There is a process involved in making a phone call which BNG explained at the preliminary conference. He made an appointment to make a permitted seven-minute call and said the first available time he could obtain was on 8 March 2024 when he rang the insurer. He was then advised that his benefits had been suspended and what he needed to do to have his benefits reinstated. He says he took steps to obtain an appointment with the GP that visits the gaol, but he could not get an appointment before he was released on 29 April 2024.
He says he saw his GP the day after he was released and appears to have done so as the Certificate of Fitness was completed on 30 April 2024.
In my view this is a reasonable excuse for the claimant’s continued failure to lodge a Certificate of Fitness after the one that expired on 4 February 2024.
CONCLUSION
As at 16 February 2024, BNG had not complied with the requirement of s 3.15(1) which was to provide a Certificate of Fitness for work to the insurer for the period after 5 February 2024.
GIO had attempted to but had not, as at 16 February 2024 communicated with the claimant the need to comply with the requirement. Therefore, the insurer should not have suspended BNG’s weekly payments on 23 February 2024.
The GIO had also not complied with cl 4.61 because it had been unable to contact the claimant and had not given him a reasonable time to comply. Again therefore, the insurer should not have suspended BNG’s payments.
GIO had also not complied with cl 4.62 by enquiring as to whether BNG had an excuse or a reasonable excuse for not complying with the s 3.15(1) requirement before suspending his payments.
BNG does have an excuse which in my view is a reasonable excuse for his failure to comply with the s 3.15(1) requirement. BNG was in gaol unable to access medical help and obtain his own doctor’s certificate and had to wait for an appointment with the visiting GP which never eventuated.
GIO’s decision to suspend BNG’s weekly statutory benefit was, in my view, not a lawful decision. While I can understand the difficulties facing the insurer and appreciate the attempts that were made to reach him, there is no evidence before me that would support a finding that BNG was contacted or that any of the insurer’s communications to him about his benefits had reached him before he contacted GIO on 8 March 2024.
The process established by s 3.15(7) of the MAI Act and cls 4.61 and 4.62 of the Guidelines requires the claimant to be on notice of what is required and what might occur. BNG was not aware of the action the insurer was intending to take with regards to the suspension of his benefits before that action was actually taken.
I find that, GIO was not entitled to suspend BNG’s weekly payments under s 3.15(7) of the MAI Act.
Section 7.13(3) of the MAI Act permits me to affirm, vary or set aside the GIO’s decision to suspend BNG’s weekly payments. Given my findings, GIO’s decision is set aside. I will make a decision in substitution for the reviewable decision.
BNG is entitled to weekly payments on and from 5 February 2024 to when they resumed on or about 2 May 2024.
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