BYT v AAI Limited t/as GIO
[2023] NSWPIC 324
•26 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BYT v AAI Limited t/as GIO [2023] NSWPIC 324 |
| CLAIMANT: | BYT |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Terence O'Riain |
DATE OF DECISION: | 26 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; the reviewable decision is about whether for the purposes of section 6.13(2), the claimant’s weekly benefits can be backdated to the date of accident when the application for personal injury benefits was lodged more than 28 days after the date of accident; therefore is a miscellaneous assessment matter under schedule 2(3) (k); accident happened before regulation 8A came into effect on 1 April 2023; application for personal injury benefits; limitation period; 28 days; no exceptions before 1 April 2023; Held – explanation not applicable; insurer may not pay weekly benefits prior to the lodging of the Application for Personal Injury Benefits. |
DETERMINATIONS MADE: | Certificate In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. In accordance with section 6.13(2) the insurer may not pay weekly benefits prior to the lodging of the Application for Personal Injury Benefits. 2. The amount of the claimant’s costs in the matter is $nil. |
REASONS
INTRODUCTION
Background
BYT has lodged a miscellaneous claims matter application under Schedule 2, clause 3(k) of the Motor Accident Injuries Act 2017 (‘the MAI Act’), which deals with whether an insurer is entitled to refuse payment of weekly payments of statutory benefits, including statutory benefits for a period before a claim is made, following section 6.13 (time for making payments of statutory benefits).
Additionally, Clause 4.15 of the Motor Accident Guidelines (‘the Guidelines’) provides that to be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident; a claimant must give notice of the claim to the relevant insurer within 28 days after the date of the accident.
BYT was involved in a motor vehicle accident on 20 February 2023.
On 4 April 2023, BYT lodged an Online Application for Personal Injury Benefits. It was electronically signed and dated on that date.
The insurer entered BYT’ Online Application for Personal Injury Benefits(claim) into its system on 6 April 2023.
The insurer issued an acknowledgement of claim on 11 April 2023 [R3]. The acknowledgement said the insurer undertook to make and notify BYT of its liability decision no later than 4 May 2023. The acknowledgement said the liability decision would tell BYT if she was eligible for benefits for the first 26 weeks following the date of the motor accident, that is from 20 February 2023 to 21 August 2023.
The insurer issued a notice of weekly benefit payments on 11 April 2023 [R4]. The notice said the insurer would pay statutory benefits from the date the insurer received the claim of the motor accident. There was also a liability determination dated 11 April 2023, which said the benefit would be calculated 26 weeks from the day after the accident[R5].
BYT requested an internal review by email on 24 April 2023 regarding the insurer’s decision and provided reasons for the delayed claim.[R6] She stated that the three notices confused her, because the liability was accepted from the day after the accident, but payments would not be backdated.
The insurer conducted the internal review on 18 May 2023 and affirmed the original decision [R7].
BYT subsequently applied to the Personal Injury Commission (the Commission) to decide whether the insurer was entitled to refuse to pay statutory benefits as weekly payments.
She provided submissions regarding previous Commission decisions under Schedule 2, clause 3(h) of the MAI Act, which dealt with full and satisfactory explanation.
The insurer submits that BYT did not make her claim for statutory benefits within 28 days after the motor accident and that he is not entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident.
The insurer has submitted the insurer does not deny BYT’s explanation is full and satisfactory.
The real issue is whether the MAI Act contains a provision for an exception to the operation of s 6.13(2) where a full and satisfactory explanation is provided for any delay in making a claim for statutory benefits.
Regulation 8A of the Motor Accident Injuries Regulation 2017, which allows for explanations to enable the insurer to backdate claims back to the date of accident, does not apply to the subject claim because the motor accident occurred before 1 April 2023.
There is a clear line of authority that the wording of s 6.13(2) of the MAI Act is unambiguous and no discretion to extend time exists. The insurer provided a list of prior decisions on this section.
Reasons
On 26 June 2023, the claimant, BYT with Michael Steep, her friend, and Mr Ian Izzard for the insurer, attended a teleconference before me to discuss how this matter would proceed.
BYT submitted that she had lodged his application in good faith. After a brief discussion she accepted that the legislation had caught her claim.
I said the insurer's submissions were correct, and this application could not succeed.
Schedule 2 (3) (k) of the MAI Act, being a miscellaneous claims assessment application, only has work to do in respect of the first and 3rd sub-paragraphs of s6.13. Accordingly, the insurer’s discretion to accept or refuse a claim only refers to those subsections.
If a claim for statutory benefits is not made within 28 days of the motor accident before 1 April 2023, then weekly payments of statutory benefits are only payable in respect of any period before the claim is made if the regulations permit it.
This state of affairs was the law until the regulations are made in respect of section 6.13(2) came into effect on 1 April 2023, which could allow an insurer to pay a claim for accident weekly statutory benefits from the date of an accident, even if the claim arrives after 28 days.
The state of the law at the date of accident means the claimant's application for miscellaneous assessment cannot succeed. In this case, the insurer is entitled to refuse to pay weekly statutory for the period between the date of the accident and when the application for personal benefits was lodged, in spite of having a full and satisfactory explanation.
I am grateful for the parties’ submissions and the attendance at the conference. They were of great assistance.
I make no order about costs because the claimant is self-represented.
In accordance with section 6.13(2) the insurer may not pay weekly benefits prior to the lodging of the Application for Personal Injury Benefits.
Legislation
In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW)
• Motor Accident Injuries Regulation 2017,
• Motor Accident Guidelines/Personal Injury Commission Rules 2021.
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