Chowdhury v Insurance Australia Limited t/as NRMA
[2021] NSWPIC 424
•21 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Chowdhury v Insurance Australia Limited t/as NRMA [2021] NSWPIC 424 |
| CLAIMANT: | Md Nazmuddin Chowdhury |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 21 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; late claim for statutory benefits; claim made nearly 12 months after accident; claimant advised by General Practitioners (GPs) to lodge workers compensation claim; claimant acted on advice from his GPs; delay in employer submitting claim to icare; application of section 6.13 of the Motor Accident Injuries Act 2017; whether the claimant had provided a full and satisfactory explanation for the delay in making the claim for the purposes of section 6.2; Karambelas v Zanic (No 2), Walker v Howard , Russo v Aiello and Hunter v Roberts applied; Held - the claimant’s explanation was “full”; claimant lodged a workers compensation claim; claimant acted on what he was told by his GPs; in the absence of legal advice, it is not unreasonable for the claimant to have relied on what his doctors told him; for many people their doctors are the professional with whom they have the most contact and place they most trust; claimant not aware of time limits; a reasonable person in the position of the claimant would have been justified in experiencing the same delay; the explanation for the delay in making the claim is “satisfactory”; a full and satisfactory explanation for the delay in making the claim for statutory benefits had been provided. |
| DETERMINATIONS MADE: | 1. For the purposes of s 6.13(3) Mr Chowdhury has provided a full and satisfactory explanation for the delay in making his claim for statutory benefits. 2. A late claim for statutory benefits may be made in accordance with section 6.13. 3. The insurer is not entitled to refuse payment of statutory benefits in accordance with s 6.13 of the Motor Accident Injuries Act 2017. 4. A statement setting out the Commission’s reasons for the assessment are included with this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This matter involves a dispute about whether Mr Chowdhury can make a claim for statutory benefits following a motor accident on 5 September 2019 (the accident).
Mr Chowdhury’s claim for statutory benefits was received by the insurer on 27 August 2020, nearly 12 months after the accident. Section 6.13 of the Motor Accident Injuries Act 2017 (MAI Act) states that a claim for statutory benefits must be made within three months after the date of the accident. As his claim was submitted more than three months after the accident Mr Chowdhury may only make a claim if he provides a full and satisfactory explanation for the delay in making the claim.
By letter dated 9 September 2020 the insurer issued a notice to Mr Chowdhury declining his claim on the grounds that the claim was late and an explanation for the delay had not been provided.
Mr Chowdhury sought an internal review of the insurer’s decision. The outcome of the review was provided to him in a letter dated 22 September 2020. The reviewer affirmed the insurer’s earlier decision to decline the claim. Mr Chowdhury then lodged an application with the Dispute Resolution Service (DRS).
The issue for me to determine is whether Mr Chowdhury has provided a full and satisfactory explanation for the delay in making his claim. The dispute is a miscellaneous claims assessment matter.[1]
[1] Schedule 2 clause 3(k) of the MAI Act.
Transitional matters
The Personal Injury Commission (the PIC) was established on 1 March 2021. These proceedings were commenced in the DRS, before the PIC was established. In accordance with Sch 1 Pt 2 cl 14A and cl 14B of the Personal Injury Commission Act 2020 (the PIC Act), the proceedings constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.
What the Act says
The provisions of the MAI Act relevant to this dispute are found in sections 6.13 and 6.2. Those provisions are in the following terms:
“6.13 Time for making of claims for statutory benefits
(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.
(3) However, a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, and either—
(a) the claim is made within 3 years after the date of the motor accident, or
(b) the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.
(4) In addition, a claim for statutory benefits under Division 3.4 in respect of an injury for which compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the Workers Compensation Act 1987 has been payable may be made within 3 months after the compensation ceases to be payable.
6.2 Meaning of “full and satisfactory explanation” by claimant (cf s 66 MACA)
(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.
(2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
As his claim was made within three years of the accident the claim may be made if
Mr Chowdhury provides a full and satisfactory explanation for the delay in making the claim.
Mr Chowdhury’s explanation
In addition to his evidence at the assessment conference, which is addressed later in these reasons, Mr Chowdhury provided an explanation for the delay in an undated letter received by the insurer on 7 September 2020.[2] In the letter, Mr Chowdhury explained that on the day of the accident he advised his manager about the accident by text. He explained that he was on his way to work when the accident happened. He attended his General Practitioner (GP) the day of the accident and was given a medical certificate that he subsequently provided to his manager. His manager told him that his employer could not pay him and that he would need to take leave without pay or they could pay him holiday pay. His GP told him that he was eligible for ‘work cover’. After some weeks his manager submitted a claim to icare. Mr Chowdhury states that icare subsequently advised him over the phone that they would not accept liability for his claim. He was told that this would be confirmed in writing.
[2] [R4].
Mr Chowdhury has provided a letter from icare dated 1 July 2020. The letter states that he is not eligible for benefits under the Workers Compensation Act 1987 (the 1987 Act). It records that the decision about his eligibility for workers compensation benefits had been made that day.
On 15 October 2020, Mr Chowdhury provided further submissions in a letter attached to his application to the DRS. The letter records that:
(a) on the day of the accident he informed his supervisor that he had been involved in an accident. His supervisor told him to go to the doctor and send him a medical certificate;
(b) he attended his GP and was given a medical certificate;
(c) his GP informed him that his injuries would be covered by ‘Work Cover’ and that his employer would cover his expenses and wages;
(d) he provided the certificates from his GP to his employer;
(e) in the first week of June 2020 he received a call from his employer’s insurer who confirmed they had received a claim from his employer. He was provided a claim ID;
(f) sometime later he was advised that as the accident happened on his way to work he was not entitled to receive his wages. He was told that this would be confirmed in writing; and
(g) as written confirmation had not been received ‘after long periods of waiting’ he followed up and received a copy of the letter by email on 12 August 2020.
Assessment conference
An assessment conference was held on 14 September 2021. Mr Chowdhury gave the following evidence at the assessment conference:
(a) he was born in Bangladesh and migrated to Australia in 2009;
(b) prior to the accident he had made workers compensation claims;
(c) he had made a CTP claim in 2016, following a motor vehicle accident on 29 January of that year (the 2016 accident).The claim was made on Zurich insurance over the telephone. He remembered having a single attendance on his GP in relation to injuries sustained in this accident;
(d) he did not see a lawyer in relation to the 2016 accident;
(e) he was not aware of any time limits in relation to the 2016 claim;
(f) following the subject accident his employer never told him about his ability to make a CTP claim;
(g) he attended Dr Doan, a GP, on the morning of 5 September 2019, seeking treatment in relation to the accident that had occurred earlier that morning. Dr Doan gave him a medical certificate to be provided to his employer.
Dr Doan told him that it was a ‘Workcover claim’. Dr Doan did not say anything to him about making a CTP claim;(h) he was not aware that he could make a CTP claim following the September 2019 accident;
(i) he was not aware of time limits relating to his CTP claim;
(j) he did not get advice from anyone about his rights in relation to the September 2019 accident;
(k) he thought that he had a workers compensation claim following the accident. He provided the certificates from his doctor to his employer. He said that his employer had asked him to do this.
(l) he thought his employer had lodged a workers compensation claim on his behalf;
(m) his employer never told him that the claim was not covered by workers compensation;
(n) he thought that someone at icare had given him ‘hints’ about making a CTP claim, and
(o) with reference to an email dated 15 June 2020[3] he disputed that his employer had informed him that ‘having a car accident on the way to work does not fall under workers compensation’.
[3] AD 3 page 33 – email from Kaine Bayfield, Chief Operating Officer, Bayfield Hotels to icare.
Mr Chowdhury reiterated the submissions he had previously made. In short, he had been told by his GP that he had a workers compensation claim following the accident and his GP provided him with certificates that he in turn gave to his employer. He assumed that his employer had ‘made the claim’. It was only after icare informed him that he did not have a workers compensation claim that he lodged a CTP claim.
In addition to relying on written submissions dated 12 November 2020, the insurer argued that:
(a) Mr Chowdhury had been involved in a prior motor vehicle accident and had made a claim;
(b) in those circumstances, a person in Mr Chowdhury’s position would have known he was entitled to lodge a CTP claim;
(c) Mr Chowdhury’s statement at the assessment that ‘insurance is there for a reason’ is evidence that he was aware he had a right to make a CTP claim, and
(d) it was not clear how Mr Chowdhury came to lodge a CTP claim in relation to the accident or who prompted him to do so.
Evidence
GP records
Mr Chowdhury’s clinical records from A2Z medical centre are in evidence.[4] The clinical notes include the following entries:
(a) 5 September 2019 – Dr Doan - ‘recent motor vehicle accident’ ‘see WC initial certificate for details’. ‘Workcover initial certificate attended’. ‘Reason for contact: Workers Compensation’;
(b) 3 October 2019 – Dr Doan - ‘Reason for contact: Workers Compensation’. ‘Worker’s comp cert renewed’;
(c) 24 February 2020 – Dr Nomani - ‘had MVA while going to work in sept’2019’;
(d) 2 June 2020 – Dr Nomani – ‘does not know anything about work cover’;
(e) 29 June 2020 – Dr Nomani – ‘awaiting for insurance approval’, and
(f) 27 July 2020 - Dr Nomani – ‘work cover has not accepted’.
[4] AD4
Certificates of capacity/fitness were issued following Mr Chowdhury’s attendances at the practice on 5 September 2019, 3 October 2019, 12 March 2020, 7 May 2020,
2 June 2020 and 29 June 2020. The certificates all state that they are ‘For use with workers compensation and Compulsory Third Party (CTP) motor accident injury claims’. Each certificate records that the date of accident to which they relate is 5 September 2019.
icare documents
Documents from icare include a letter to Mr Chowdhury dated 1 July 2020 in which it is stated that, in relation to his injury on 5 September 2019, he is not eligible for compensation under the 1987 Act. Reference is made in the letter to a certificate of capacity from Dr Nomani dated 29 June 2020. There is a further letter to
Mr Chowdhury stating that his claim has been closed.An email from icare to Mr Chowdhury sent on 29 June 2020 records that icare had received notification from his employer regarding an accident in which he was involved on 5 September 2019.
An email from Kaine Bayfield, Chief Operating Officer, Bayfield Hotels, to icare dated 10 June 2020 states:
“I just had a query as to whether an employee is covered for an injury that occurred in a car accident while travelling to work?”
An email from Kaine Bayfield to icare dated 15 June 2020, includes the following:
“Please see email below from an employee of ours who had a car accident on the way to work a while ago (5/9/2019). At the time he was informed that having a car accident on the way to work does not fall under worker’s compensation.”
Attached to Mr Bayfield’s email is an email from Mr Chowdhury dated 10 June 2020, that includes the following:
“When the accident happened I was on the way to my job to dee why hotel and after the accident I test to chef Aaron what I need to do instantly Chef was so disappointed with me for that accident but he direct me to go to the doctor and sent the doctor certificate to him and I did abjectly what he told me. the gp asked me for the claim id a couple of times pleas help me to back my job. if you want to talk the doctor pleas infirm me I will give the details more elaborately.”
Mr Bayfield received a response from icare to his email of 10 June 2020 on 15 June 2020. He was directed to a link contained in the email.
The icare documents include an email from Mr Chowdhury sent on 11 August 2020. The email refers to Mr Chowdhury being ‘called by someone and informed [that] due to the ground of the incident it is not acceptable…’. The email records that Mr Chowdhury had not received any documents confirming why his claim was ‘not acceptable’. He sought written confirmation of icare’s decision. An email in similar terms was sent by Mr Chowdhury on 12 August 2020. An email in response was sent by EML, as agent for icare, on 12 August 2020. The email attaches correspondence to Mr Chowdhury denying liability for his claim.
The 2016 claim
A PIR accident summary records that a CTP claim was lodged by Mr Chowdhury in relation to a motor accident on 29 January 2016. The managing insurer was Zurich. Provisional liability for the claim was accepted on 16 February 2016. The claim was finalised on 22 August 2016.
A schedule of payments provided by Gordian Runoff Limited records that the sum of $150 was paid to Mr Chowdhury in relation to the claim on 21 March 2016.
Relevant authorities
There are no authorities that address ss 6.2 and 6.13 of the MAI Act. There are, however, authorities that address what constitutes a ‘full and satisfactory explanation’ for the purposes of s 66 of the Motor Accidents Compensation Act 1999 (MACA). There is no material difference between s 6.2 of the MAI Act and s 66 of the MACA. The authorities establish the following:
(a) an explanation is "full and satisfactory" if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until "the date of providing the explanation";[5]
(b) to be full, the explanation needs to be complete in the relevant sense as saying what happened and why. The provision does not call for perfection or for prolix or burdensome recounting of every moment that has elapsed. The section does require the explanation for the delay from the date of the accident;[6]
(c) the acts and omissions of all relevant persons should be canvassed in the explanation to allow an evaluation to be made as to whether the explanation is “full”;[7]
(d) the meaning of “full” is to be understood in the context of the purpose of the provision and the explanation: to enable the Court to evaluate the reasons for the delay. Thus all relevant information to that end is required;[8]
(e) the delay is the period during which the claimant was late in making his claim; a period commencing three months after the date of the motor accident and continuing until the claim is first made by giving notice to the insurer;[9]
(f) the concept of a satisfactory explanation requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable;[10]
(g) there is “a substantial spectrum of reasonableness” and accordingly “it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay”. The test does not require a claimant to establish that all “reasonable” persons within that spectrum would have experienced the same delay;[11]
(h) when considering whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay considerations such as the claimant’s age and life experience and understanding of the claim process are relevant;[12]
(i) the claimant, to provide the requisite explanation, must address acts and omissions relevant to the delay “from the date of the accident until the date of providing the explanation”, and[13]
(j) the physical makeup of the claimant must be transferred to the hypothetical reasonable person. That includes the age, sex and capacity of the claimant. The cultural background of the claimant, at least within limits, is also transferred across.[14]
[5] Karambelas v Zanic (No 2) [2014] NSWCA 433 at [16]
[6] Walkerv Howard [2009] NSWCA 408 Allsop P at [104]
[7] Walker Allsop P at [106]
[8] Walker Allsop P at [57]
[9] Karambelas at [16]
[10] Karambelas at [17]
[11] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17]
[12] Hunter v Roberts [2019] NSWCA 116 at [19 -20]
[13] Walker Allsop P at [54]
[14] Walker Young JA at [138]
Insurer’s submissions
In addition to the oral submissions made at the assessment conference the insurer relies on written submissions dated 12 November 2020.
The insurer submits that the claimant has not provided a full account of his conduct, including his actions, knowledge and belief from the date of the accident until the date of providing the explanation as required by section 6.2 of the MAI Act.
The insurer submits that the explanation provided by the claimant is not considered full or satisfactory for the following reasons:
(a) the claimant consulted his treating doctor for treatment immediately following the motor accident. He has not provided full details of the treating doctor he consulted nor addressed whether he was aware of his CTP claim entitlement at this stage and whether he was at any stage advised to lodge a CTP claim;
(b) the claimant’s employer was aware that he had been involved in a motor accident on 5 September 2019. The claimant has not addressed whether his employer, at any stage, had discussions with him about making a CTP claim in relation to the motor accident; and if so, the nature of the discussions;
(c) the claimant’s employer lodged a worker’s compensation claim. The claimant has not provided details as to the precise date of lodgement of the worker’s compensation claim and addressed the delay in the workers compensation claim being lodged;
(d) the claimant had several telephone conversations with icare. He has not addressed whether, at any stage, he was made aware of the possibility of making a CTP claim and advised to lodge a CTP claim;
(e) the claimant has not provided details of the period he underwent treatment, the type of treatment undertaken, the details of his treating provider(s) and whether the treating provider(s) he was consulting advised him, and or prompted him, to lodge a CTP claim;
(f) the claimant has not provided a full account of his actions, knowledge and belief for the period 5 September 2019 to 15 October 2020;
(g) the insurer received the claim for statutory benefits on 27 August 2020. The claimant has not addressed who and/or what prompted him to lodge a CTP claim and the content of any advice received;
(h) the claimant has not provided an adequate explanation as to his general knowledge and beliefs of the CTP Scheme, and whether he was aware of the possibility of making a CTP claim, and the claims process;
(i) the claimant stated that he had discussions with his treating doctor about the motor accident and his eligibility to lodge a workers compensation claim. He has not provided details of when the discussions occurred or the nature of the conversations, what prompted these conversations and the content of the advice received from his treating doctor;
(j) the claimant’s omissions are such that the explanation provided is not a full account of his conduct, including his actions, knowledge and belief;
(k) the claimant’s explanation for the delay in making his claim is not considered to be satisfactory for the purposes of section 6.13(3) of the Act and as required by section 6.2 of the Act;
(l) in Dijakovic v Peres [2015] NSWCA 74; 71 MVR 334 at [19], Gleeson JA observed that the concept of a satisfactory explanation requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which has occurred was reasonably justifiable;
(m) the claimant alleges that he attended his treating provider immediately following the motor accident and had regular consultations thereafter whereby he was advised of his entitlement to a workers compensation claim only. He alleges that his employer was reluctant to lodge a workers compensation claim; however, he eventually did so when he was unable to return to his pre-injury duties as a chef;
(n) a reasonable person in the position of the claimant, who was experiencing pain to the chest, neck and lower back, and required support with respect to income loss would have taken steps to seek information and advice from his treating doctor, any other treating provider(s), as well as legal advice about his rights and entitlements under the CTP Scheme, how to go about lodging a CTP claim, and then undertaken the required steps to lodge a claim, and
(o) as the claimant has not provided a full and satisfactory explanation for the delay in making his claim, his claim for statutory benefits may not be made.
Determination
The accident having occurred on 5 September 2019, s 6.13 required Mr Chowdhury to lodge his claim for statutory benefits by 5 December 2019. His claim was not received by the insurer until 27 August 2020, nearly 12 months after the accident and 9 months late.
His claim for statutory benefits having been made within three years after the accident, Mr Chowdhury may make his claim if he provides a full and satisfactory explanation for the delay in making the claim. The meaning of “full and satisfactory explanation” is addressed earlier in these reasons.
Is Mr Chowdhury’s explanation full?
Mr Chowdhury’s explanation for the delay is that he thought the appropriate claim to lodge after the accident was a workers compensation claim. He did not have the benefit of legal advice. He relied on what his GPs told him.
The clinical notes from A2Z medical centre, including the certificates issued to Mr Chowdhury, satisfy me that the doctors from whom he sought treatment at that practice thought that he had workers compensation rights arising from the accident. I am satisfied that Dr Doan informed the claimant that he was entitled to make a workers compensation claim as a result of the accident. I think it is more likely than not that Dr Nomani told him the same thing.
I accept Mr Chowdhury’s evidence that he relied on what his doctors told him in terms of making a workers compensation claim in relation to the accident. I accept his evidence that he was not advised by his doctors to make a CTP claim or that the option of doing so was available to him.
In my view, Mr Chowdhury’s employer should have lodged his claim with icare earlier. No doubt the claim would have been rejected. However, this is likely to have resulted in Mr Chowdhury submitting his CTP claim sooner than he ultimately did. I have concluded that this accounts for some of the delay in the CTP claim being made.
I am persuaded that Mr Chowdhury held the view that he was entitled to workers compensation benefits until he received notification from icare that liability for his workers compensation claim had been denied. In my view, it was reasonable for him to wait for icare’s denial of liability to be communicated to him in writing. I find that Mr Chowdhury received written notification from icare in this regard when he received the email from EML on 12 August 2020 attaching icare’s letter denying liability dated 1 July 2020. Within a fortnight he submitted an application for statutory benefits to the insurer, that application being received by the insurer on 27 August 2020.
Section 6.2 does not call for perfection or for prolix or burdensome recounting of every moment that has elapsed. I am satisfied that Mr Chowdhury’s explanation is complete in the sense that it says what happened and why.
I find that Mr Chowdhury has provided a “full” explanation for the delay for making the claim.
Is Mr Chowdhury’s explanation satisfactory?
Mr Chowdhury was born in Bangladesh, migrating to Australia in 2009 when he was 25 years old.
The evidence establishes that Mr Chowdhury submitted a CTP claim following the January 2016 motor accident. Having made a prior CTP claim, the insurer argues that he was aware he could submit a CTP claim following a motor vehicle accident.
The 2016 accident appears to have been minor. Payments totalling $150 were made. Nonetheless, having made a claim in relation to the 2016 accident, Mr Chowdhury must have been aware that a CTP claim could be lodged after a motor accident. He said, however, that he was not aware of time limits in relation to CTP claims. Further, he had been told by his GPs that he was covered by workers compensation. He acted on what he was told by his GPs. In the absence of legal advice, it is not unreasonable for Mr Chowdhury to have relied on what his doctors told him. For many people their doctors are the professional with whom they have the most contact and place the most trust.
The insurer relies on the email from Kaine Bayfield of 15 June 2020 in which he records that Mr Chowdhury was informed that a motor vehicle accident did not fall under workers compensation. Mr Chowdhury disputed that this had occurred.
Precisely what it is alleged Mr Chowdhury was told, by whom and when is not clear. I am not persuaded that Mr Chowdhury was informed by his employer shortly after the accident, or at any time until icare denied liability for his claim, that he was not covered by workers compensation with respect to the accident.
In any event, Mr Chowdhury’s subsequent actions, in continuing to pursue a workers compensation claim, satisfy me that even if someone from his employer did inform him that his accident did not fall under workers compensation, he did not understand this to be the case. It was only when informed by icare that liability for his workers compensation claim was denied that Mr Chowdhury pursued a CTP claim. Until that point, he persisted with his workers compensation claim.
Further, even if his employer didn’t think his claim was covered by workers compensation, Mr Chowdhury did. He did so because his doctors told him it was. This was no doubt a view the doctors honestly held. They were wrong.
I have concluded that it is more probable than not that Mr Chowdhury made his CTP claim after being prompted to do so by someone at icare. This is likely to have occurred sometime in either July or August 2020. He submitted his CTP claim on 27 August 2020.
I accept Mr Chowdhury’s evidence that he was not aware of time limits in relation to his 2016 CTP claim or the claim the subject of these proceedings.
In all the circumstances, I am satisfied that a reasonable person in the position of Mr Chowdhury would have been justified in experiencing the same delay. I find that Mr Chowdhury’s explanation for the delay in making the claim is satisfactory.
Conclusion
For the purposes of s 6.13(3) I find that Mr Chowdhury has provided a full and satisfactory explanation for the delay in making his claim for statutory benefits.
A late claim for statutory benefits may be made by Mr Chowdhury in accordance with section 6.13.
The insurer is not entitled to refuse payment of statutory benefits in accordance with
s 6.13 of the MAI Act.
Brett Williams
Member (Motor Accidents Division)
Personal Injury Commission
0
5
0