Darwiche v GIO
[2021] NSWPICMR 34
•15 July 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Darwiche v GIO [2021] NSWPICMR 34 |
| CLAIMANT: | Hassane Darwiche |
| INSURER: | GIO |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 15 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit Review; whether for the purpose of section 3.11 of the Motor Accidents Injuries Act 2017 (2017 Act) the injury caused by the motor accident is a minor injury; whether for the purpose of section 3.11 of the 2017 Act the motor accident was caused mostly by the fault of the claimant; whether weekly benefits should commence from the day after the accident or from the day the Claimant lodged his Claim Form; Held- PAWE is affirmed; application otherwise dismissed on the basis there is no jurisdiction to determine the disputes on the basis of a merit review. |
| DETERMINATIONS MADE: | 1. The reviewable decision is affirmed in so far as the Claimant’s PAWE is calculated as $818.23 on the basis it is agreed by the Claimant. 2. The merit review application is otherwise dismissed on the basis there is no jurisdiction to determine the disputes on the basis of a merit review. |
Certificate
Issued under section 7.13(4) of the Motor Accident Injuries Act2017
Background
There is a dispute between Hassane Darwiche (the Claimant) and the Insurer in relation to weekly payments of statutory benefits under Division 3.3 of the 2017 Act.
The Claimant was involved in a motor accident on 20 November 2020. He lodged a claim form for weekly benefits on 12 March 2021, outside the time limit prescribed by section 6.13 of the 2017 Act.
On 18 May 2021 the Insurer issued an internal review decision in which the Insurer determined:
(a) the Claimant’s PAWE is $818.23; and
(b) the Claimant is not entitled to payment of weekly benefits from 21 November 2020 to 11 March 2021 by reason of the late lodgement of his claim form (section 6.13 of the 2017 Act).
This internal review decision has been referred for a merit review.
In addition to the internal review decision of 18 May 2021 the Insurer has separately determined the Claimant is not entitled to weekly benefits after 26 weeks, pursuant to section 3.11 of the 2017 Act, on the basis:
(a) he suffered a minor injury; and/or
(b) he is mostly at fault for the accident.
Submissions
In his application for a merit review the Claimant says he disputes the Insurer’s decisions that his injury is a minor injury and he is mostly at fault for the accident. The Claimant has provided medical records in support of his position.
The Claimant does not specifically address the Insurer’s internal review decision of 18 May 2021 in relation to payment of weekly benefits.
Accordingly, on 9 July 2021 I conducted a teleconference with the parties in order to determine the precise issues in dispute in relation to the Insurer’s internal review decision of 18 May 2021.
Outcome of teleconference
At the teleconference on 9 July 2021 the Claimant confirmed he continues to dispute he has a minor injury and is mostly at fault.
In relation to the internal review decision of 18 May 2021 the Claimant confirmed:
(a) he no longer challenges calculation of his PAWE and accepts that figure is $818.23, as calculated by the Insurer; and
(b) he disputes that the Insurer is entitled to deny weekly benefits for the period 21 November 2020 to 11 March 2021.
Reasons
The Claimant’s disputes, as confirmed during the teleconference, are:
(a) Dispute 1: whether for the purpose of section 3.11 of the 2017 Act the injury caused by the motor accident is a minor injury such that the Claimant is not entitled to weekly benefits for loss of earnings or loss of earning capacity that occurs more than 26 weeks after the accident.
(b) Dispute 2: whether for the purposes of section 3.11 of the 2017 Act the motor accident was caused mostly by the fault of the Claimant such that the Claimant is not entitled to weekly benefits for loss of earnings or loss of earning capacity that occurs more than 26 weeks after the accident.
(c) Dispute 3: whether weekly benefits should commence from the day after the accident on 20 November 2020, being 21 November 2020, or from the day the Claimant lodged his Claim Form on 12 March 2021.
As noted, to the extent the internal review decision of 18 May 2021 deals with the Claimant’s PAWE, at the teleconference on 9 July 2021 the Claimant agreed with the Insurer’s decision that his PAWE is $818.23.
I will deal with each of the remaining three disputes put forward by the Claimant in this merit review application in turn below.
Dispute 1
Schedule 2, clause 1 of the 2017 Act sets out the matters that are merit review matters.
Dispute 1 is not a merit review matter under schedule 2, clause 1. It is a medical assessment matter pursuant to schedule 2, clause 2(e) of the 2017 Act.
There is no jurisdiction under schedule 2, clause 1 or Division 7.4, which deals with merit reviews, to conduct a merit review of Dispute 1. It is a medical assessment matter, which falls under Division 7.5 of the 2017 Act.
The Claimant has been advised that subject to whether there has been an internal review by the Insurer in relation to Dispute 1, he should lodge an application for a medical assessment with the Personal Injury Commission (the Commission) under schedule 2, clause 2(e) and Division 7.5 of the 2017 Act to resolve the dispute. It is understood the Claimant may now have done so.
Dispute 2
Dispute 2 is also not a merit review matter under schedule 2, clause 1. There is no jurisdiction to conduct a merit review of Dispute 2 under schedule 2, clause 1 or Division 7.4 of the 2017 Act.
Dispute 2 is a miscellaneous claims assessment matter under Schedule 2, clause 3(e) of the 2017 Act.
Subject to whether there has been an internal review by the Insurer in relation to this dispute, the Claimant should lodge an application with the Commission for a miscellaneous claims assessment under Schedule 2, clause 3(e) and Division 7.6, section 7.42 of the 2017 Act to resolve this dispute.
Dispute 3
Dispute 3 is the subject of the Insurer’s internal review decision dated 18 May 2021. This dispute is not expressly raised in the merit review application and was only raised or made clear by the Claimant for the first time during the teleconference on 9 July 2021. At that time, I initially indicated I would issue directions giving the parties an opportunity to address this dispute by way of further submissions and/or documents. However, having now had the opportunity to more fully consider this dispute after the teleconference, I have determined that there is no jurisdiction to conduct a merit review of this dispute, for the reasons set out below.
A dispute as to whether an insurer is entitled to refuse payment of statutory benefits under section 6.13 is not a merit review matter under schedule 2, clause 1 of the 2017 Act.
This dispute is a miscellaneous claims assessment matter under schedule 2, clause 3(k).
If the Claimant disputes that part of the Insurer’s internal review decision of 18 May 2021 that deals with the payment period under section 6.13 of the 2017 Act, he should make an application to the Commission for a miscellaneous claims assessment under Division 7.6, subdivision 3 and section 7.42 of the 2017 Act.
There is no jurisdiction to consider this dispute as a merit review matter under schedule 2, clause 1 or Division 7.4 of the 2017 Act.
1.
Conclusion
The reviewable decision is affirmed in so far as the Claimant’s PAWE is calculated as $818.23 on the basis it is agreed by the Claimant.
The merit review application is otherwise dismissed on the basis there is no jurisdiction to determine the disputes on the basis of a merit review.
Legislation and Guidelines
In making this decision, I have considered the following:
· the application, reply and supporting documentation
· the 2017 Act
· Motor Accident Guidelines
· Motor Accident Injuries Regulation 2017
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
0
0
0