Chahine v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMR 2
•8 January 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Chahine v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 2 |
| CLAIMANT: | Chahine Chahine |
| INSURER: | NRMA |
| MERIT REVIEWER: | Maurice Castagnet |
| DATE OF DECISION: | 8 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits under section 3.8, division 3.3; weekly payments after week 78; whether the Commission has jurisdiction to determine a dispute about earning capacity as a merit review matter or as a medical assessment matter; whether the term “impairment of the earning capacity” applies to part 3; where there was no decision made by the insurer under section 3.8; where no internal review of a decision under section 3.8 was conducted; Held – the Commission has jurisdiction to determine a dispute about earning capacity for the purposes of section 3.8 as a merit review matter; proceedings dismissed in circumstances where there was no reviewable decision made under section 3.8 to review as a merit review matter. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Pursuant to s 54(b) of the Personal Injury Commission Act 2020, the proceedings are dismissed. |
STATEMENT OF REASONS
BACKGROUND
On 16 December 2021, Chahine Chahine (the claimant) made an application to the Personal Injury Commission (Commission) seeking the determination of a dispute concerning the “Amount of weekly payments” of statutory benefits.
In the application, the claimant categorised the dispute as a “Merit review” matter and stated that a request for an internal review of the insurer’s decision had been made on 5 November 2021, but no internal review had been done by the insurer.
On the basis of that information, and considering sub-ss 7.9 (4) and (5) of the Motor Accident Injuries Act 2017 (the MAI Act) and cl 7.26 of the Motor Accident Guidelines (Guidelines) applicable at the relevant time,[1] the Commission accepted the application for filing as a merit review matter to be determined as a dispute under Sch 2 (1) (a) of the MAI Act, concerning the amount of weekly payments of statutory benefits that is payable to the claimant under Division 3.3.
[1] Version 8.
The insurer filed a reply on 15 February 2022.
The matter was referred to me for determination. The proceedings were listed initially by way of a teleconference on 7 March 2022.
THE TELECONFERENCE
Following a review of the material before me and having had further discussions with the parties at the teleconference, the following background to the matter emerged:
(a) On 23 January 2020, the claimant was injured in a motor accident during a journey made in the course of his employment.
(b) On 3 August 2021, the claimant made a claim for weekly payments of statutory benefits from the insurer for the period after the first 78 weeks (the third entitlement period) pursuant to s 3.8 of the MAI Act. Prior to that period, the claimant had been receiving weekly benefits from Allianz (the relevant workers compensation insurer) in respect of his injury. According to s 3.35 of MAI Act, the claimant is not entitled to also receive weekly payment of statutory benefits from the insurer, NRMA for the same period.
(c) By letter dated 4 August 2021, the insurer advised the claimant that the insurer had not yet made a decision about his claim and requested further information from the claimant about his pre-accident earnings.
(d) Despite the issue of that letter by the insurer, the claimant’s solicitor emailed the insurer on 5 November 2021 requesting an internal review of the insurer’s “decision not to commence payments of weekly benefits.”
(e) By letter of 8 November 2021, the insurer advised the claimant that they have declined to conduct an internal review because the insurer had not made a decision declining his claim for weekly payments.
On the basis of the above background, I advised the parties the Commission does not have jurisdiction to proceed with a determination of the matter because there was no reviewable decision of the insurer for review and that indeed, the insurer had not yet made an original decision that was capable of being the subject of an internal review.
My preliminary view was that the matter should be referred back to the insurer for an original decision to be made and that the claimant should discontinue the application.
The claimant raised the issue of costs. On that basis, I made directions for the parties to make submissions on why costs should be awarded.
MATTER IS A MERIT REVIEW DISPUTE NOT A MEDICAL DISPUTE
Surprisingly during the teleconference, both parties submitted that, in any event, I did not have jurisdiction to determine the matter as a merit review because it was a “medical dispute” that should have been referred by the Registry for a medical assessment under Sch 2 (2)(d) of the MAI Act.
I rejected those submissions for the following reasons.
There was no “administrative error” by the Registry in referring the matter to a merit reviewer for determination. The application was clearly filed as a merit view matter concerning a dispute about the amount of weekly payments payable. Such an application is determined under Sch 2 (1) (a) as a merit review matter by a merit reviewer.
I note that a medical assessment under Sch 2 (2)(d) of the MAI Act is concerned with a determination of an assessment of “the degree of impairment of the earning capacity” of an injured person that has resulted from injury caused by a motor accident.
In my view, in making a decision about the amount of weekly payments of statutory benefits payable under s 3.8 of the MAI Act, an insurer is not required to assess “the impairment of the earning capacity” of a claimant but rather, an insurer is required to assess a claimant’s pre-accident earning capacity and post-accident earning capacity by applying the matters contained, for example, in s 3.8, s 3.16 of the MAI Act, cls 7 and 8 of Schedule 1 of the MAI Act, clause 4.60 of the Guidelines[2] and the available evidence, medical or otherwise.
[2] Reference is made here to Version 9.2.
Similarly, should the amount of weekly payments determined by an insurer be subject to a dispute before the Commission, a merit reviewer has jurisdiction to determine the dispute under Sch 2 (1) (a) of MAI Act and would consider the same matters. See for example the decisions in ACH v Allianz Australia Insurance Limited [2021] NSWPICMR 35 (27 July 2021) and ACD v QBE Insurance [2021] NSWPICMR 31 (26 July 2021).
My view is fortified by the fact that the term “impairment of the earning capacity” does not feature in the statutory provisions concerning the entitlement to statutory benefits under Part 3 of the MAI Act. On the other hand, the term is featured under Part 4 of the MAI Act which concerns an injured person’s entitlements to damages. See for example, ss 4.5, 4.6 and 4.9 of the MAI Act.
Specifically, s 4.8 in Part 4 of the MAI Act provides:
“If there is a dispute about the degree of impairment of an injured person’s earning capacity, the degree of that impairment may be referred for assessment by a medical assessor under Division 7.5 before damages are awarded.”
[emphasis added]There is no similar provision under Part 3 of the MAI Act in respect to a dispute regarding statutory benefits.
It follows that the parties’ submissions on the jurisdictional issue are misconceived.
NON-COMPLIANCE WITH DIRECTIONS
As it turned out, the claimant did not discontinue the proceedings as I had suggested earlier in the proceedings.
On the instruction of the Division Head, the Registry issued further directions to the claimant on 20 March 2023, 24 April 2023 and 30 June 2023 to do so or to submit further submissions as to why he does not intend to do so.
Regrettably, there was no response at all from the claimant.
SHOULD THE PROCEEDINGS BE DISMISSED?
It is convenient to set out the legislative provisions concerning dismissal of proceedings.
Section 54 of the Personal Injury Act 2020 (PIC Act) provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)for any other ground of dismissal specified in the Commission rules.”
Rule 77 of the Personal Injury Commission Rules 2021 relevantly provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) …
(b) for proceedings by an application made under the motor accidents legislation—
(i) if the application relates to a medical assessment—the application is not likely to be ready for determination within the next 6 months, or
(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due despatch, or
(iv) there is no jurisdiction to determine the dispute to which the application relates, or
(v) the application is being used for an improper purpose or is otherwise an abuse of process, or
(vi) the application was made by a person who died after the application was made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.”
As indicated earlier, the Commission does not have jurisdiction to proceed with a determination of the matter in circumstances where there is no reviewable decision of the insurer for review as a merit review matter, and indeed where the insurer has not yet made an original decision that is capable of being the subject of an internal review. For that reason, the claimant was given the opportunity on several occasions to discontinue the proceedings. He has not done so.
I therefore propose to dismiss the proceedings on the basis of s 54(b) of the PIC Act as I am satisfied that the proceedings are misconceived.
As I have found that the proceedings are misconceived, there are in my view, no justification to consider an order for costs in favour of the claimant on the basis of exceptional circumstances. The claimant’s application for costs is also dismissed.
DETERMINATION
Pursuant to s 54(b) of the PIC Act, the proceedings are dismissed.
0
2
0