Deering v Insurance Australia Limited t/as NRMA Insurance
[2021] NSWPICMRP 5
•9 September 2021
DETERMINATION OF MERIT REVIEW PANEL CITATION: Deering v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPICMRP 5 CLAIMANT: Rachel Jane Deering INSURER: Insurance Australia Limited t/as NRMA Insurance MERIT REVIEW PANEL MEMBERS: Brett Williams (Chair)
Terence O’Riain
Michael Sofoulis
DATE OF DECISION: 9 September 2021 CATCHWORDS: MOTOR ACCIDENTS- Merit Review Panel; whether claimant can recover weekly payments for time she took off work to attend treatment providers; merit review matter; dispute about whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 6.13 of the Motor Accidents Injuries Act 2017 (MAI Act); minor injury dispute; statutory benefits; earner; loss of earnings; Held - Merit Reviewer’s decision set aside; claimant incurred a loss of earnings pursuant to Schedule 1 Clause 3 of the MAI Act; claimant entitled to weekly payments of statutory benefits to the extent that she suffered a loss of earnings when she attended treatment providers; section 6.13 of the MAI Act dispute is a miscellaneous claims assessment matter; minor injury dispute is a medical assessment matter; Merit Review Panel cannot determine section 6.13 of the MAI Act or minor injury disputes.
DETERMINATIONS MADE: 1. In relation to the merit review decision by a single Merit Reviewer, the Merit Review Panel sets aside the Merit Reviewer’s decision dated 3 December 2020 and substitutes the following decision:
i. The leave, which Mrs Deering used to attend medical appointments related to the accident, was conditional on being repaid to her employer and has been repaid. Accordingly, Mrs Deering has incurred a loss of earnings pursuant to Schedule 1, Clause 3 of the MAI Act.
ii. Mrs Deering is entitled to weekly payments of statutory benefits to the extent that she suffered a loss of earnings on those occasions she attended her treatment providers in relation to injuries she sustained in the motor accident.
iii. As Mrs Deering was self-represented there are no orders as to costs.
Background
1. Mrs Deering was injured in a motor accident on 29 June 2018.
2.Mrs Deering required medical treatment from the date of accident and was attending her healthcare practitioners during work hours so she could maintain her employment as a law firm’s practice business manager.
3.While Mrs Deering’s Application for Personal Injury Benefits (her claim) was noted as lodged on 7 November 2018, she submits that she had attempted to lodge her claim prior to that date.
4.Initially her claim for weekly benefits under Division 3.3 of the Motor Accidents Injuries Act 2017 (MAI Act) was declined as the insurer found that she had not provided evidence of her incapacity and loss of earnings.
5.This decision was conveyed during a phone conversation on 28 February 2020 between Mrs Deering and the insurer’s claims consultant. There was no evidence of a letter to Mrs Deering confirming that decision.[1]
[1] Email correspondence with insurer regarding original decision.
6.Mrs Deering applied for internal review of the decision.
7.The decision was affirmed in an Internal Review Certificate dated 15 May 2020[2].
[2] IDR Certificate - Reimbursement of Sick Leave – 15 May 2020.
8.Mrs Deering subsequently applied for a Merit Review of the insurer’s decision.
9.In a certificate dated 3 December 2020[3] the Merit Reviewer affirmed the insurer’s decision. Mrs Deering sought a review of the Merit Reviewer’s decision.
[3] DRS Merit Review dated 3 December 2020.
10.On 1 April 2021 the President’s Delegate accepted the review application on the grounds that it was suspected that the Merit Review decision was incorrect in a material respect.
11.The Delegate noted Mrs Deering’s submission that she contacted the insurer the day after the accident. The Delegate was satisfied that if Mrs Deering contacted the insurer prior to 7 November 2018 it is possible her claim may have been ‘made’ prior to this date and that consequently she may be entitled to additional statutory benefits payments with respect to the period prior to 7 November 2018.
12.Section 6.13 of the MAI Act addresses time limits for making claims for statutory benefits. The dispute about when the claim for statutory benefits was made falls for determination under that provision.
13.Merit Reviewers and Merit Review Panels do not have jurisdiction to determine disputes under section 6.13 of the MAI Act. A dispute of that nature, subject to section 7.41(2)(b), requires an insurer to conduct an internal review under section 7.41[4] and may be the subject of a miscellaneous claims assessment by a Member of the Commission under Schedule 2(3)(k) and Division 7.6 of the MAI Act.
[4] 7.41 Internal review required before miscellaneous claims assessment
(1) A dispute about a decision of an insurer may not be referred by a claimant for assessment under
this Division until the decision has been the subject of an internal review by the insurer under
Division 7.3.
(2) A dispute about a decision of an insurer may be referred for assessment under this Division
without an internal review of the decision by the insurer if—
(a) the Motor Accident Guidelines provide that an internal review is not required for decisions
about the miscellaneous claims assessment matter to which the insurer’s decision relates, or
(b) the insurer has failed to complete an internal review and notify the claimant of the decision on the internal review as and when required to do so, or has declined to conduct a review.
(3) This section does not apply to a dispute about a miscellaneous claims assessment matter of a
kind prescribed by the regulations.
14.The Merit Reviewer also referred to a minor injury decision that Mrs Deering disputed.
15.The minor injury dispute is a medical assessment matter under Schedule 2 clause 2(e) of the MAI Act. It is not a merit review matter. Medical Assessors determine medical disputes.
16.A Medical Assessment Certificate in relation to minor injury is binding under section 7.23(2)(b) of the MAI Act. The Medical Assessor’s certificate(s) is (or are if there is more than 1), in connection with a merit review under Division 7.4 is be conclusive evidence as to whether the injuries Mrs Deering suffered in the accident were minor injuries.
17.There is a further matter that is the subject of disputation. The insurer’s original decision conveyed to Mrs Deering on 28 February 2020, and the Internal Review Certificate dated 15 May 2020, addressed the claim for weekly payments under Division 3.3 relating to absences from work to attend treatment providers. This dispute, as to whether or not Mrs Dearing suffered a loss of earnings as defined under Schedule 1 of the MAI Act, is reviewable under Schedule 2, clause 1(a) of the MAI Act as a merit review.[5]
[5] 1 Merit review matters
18.The Panel can and will address this dispute.
19.The insurer’s decision about weekly payments is a matter that should have been addressed by the Merit Reviewer in her decision of 3 December 2020.
20.The Panel’s review of the Merit Reviewer’s decision is conducted under Division 7.4, specifically section 7.15 of the MAI Act.[6]
[6] 7.15 Review of merit review decision by review panel21.All Panel members confirmed that they had no previous involvement with this matter, or with Mrs Deering. All Panel members also confirmed that there was no conflict or any other reason that they would be unable to approach this review with an open mind.
Legislation and guidelines
22.The Review Panel considered the following:
· MAI Act;
· Personal Injury Commission Act 2020 (the PIC Act);
· The Motor Accident Guidelines (the Guidelines);
· Motor Accident Injuries Regulation 2017 (the Regulation), and
· Personal Injury Commission Rules.
Conduct of the review
23.The Panel is required to decide what the correct and preferable decision is in respect to this merit review, is not bound by the rules of evidence and may inquire into any matter relevant to the issues in dispute in such manner as the Panel sees fit.
24.The Panel met via teleconference on 6 and 27 August 2021 with Merit Reviewer Williams acting as chairperson. The Panel determined that no teleconference with the parties was required.
25.The Panel decided that the insurer’s Internal Review Certificate dated 15 May 2020 was the reviewable decision.
26.In accordance with Procedural Direction PIC2 the Panel is satisfied that sufficient information has been supplied to it in connection with the proceedings, so that the Panel may determine the matter on the papers without holding a teleconference or formal hearing (see section 52(3) of the PIC Act).
Documents considered
27.The Panel considered the Application and the documentation attached to the Application and Reply.
28.The Panel also considered the statement of reasons of the single Merit Reviewer and the Proper Officer’s decision to refer the matter to the Panel.
Submissions & Previous Decisions
Mrs Deering’s submission dated 4 May 2020[7]
[7] Attachment 2 of Submissions from Claimant.
29.This submission, contained in a letter dated 4 May 2020, predates the insurer's internal review dated 15 May 2020 in respect of the original decision dated 28 February 2020. The submission at [2] of this letter refers to the repayment of wages that Mrs Deering’s employer paid her while attending necessary medical appointments.
30.These submissions include an attached letter from Mrs Deering's general practitioner confirming that she was attending treatment necessary to her recovery and that it would be ongoing. That document also included a schedule of past treatment attendances.
Internal Review Certificate dated 15 May 2020
31.The insurer’s internal review certificate was, relevantly to the merit review, characterised as a dispute regarding reimbursement of sick leave to Mrs Deering’s employer.
32.Mrs Deering had taken breaks during her workdays to attend necessary treatment. She requested that the insurer repay her employer for wages paid to her at those times.
33.The insurer rejected that request on the basis that sick leave was excluded as that classification of leave was not income lost from personal exertion.
34.The insurer’s decision states;
“Pursuant to clause 3(1) of Schedule 1 of the Act, a ‘loss of earnings’ is defined as a ‘loss incurred or likely to be incurred in a person’s income from personal exertion’. However, clause 3(3)(d) states that a person’s income from personal exertion excludes the ‘monetary amount of any annual, sick or other leave entitlement.’ [8]
[8] IDR Certificate page 2, [5]
35.The certificate states that the insurer declined to reimburse Mrs Deering’s employer accordingly.
Mrs Deering’s submissions dated 29 May 2020[9]
[9] Full DRS Application w Supporting Documents Rachel Jane Deering 19.05.2020
36.Mrs Deering’s submissions dated 29 May 2020 were lodged with the DRS Application and supporting documents.
37.Mrs Deering raises the following points:
(a) The insurer had determined her injuries were minor, which she disputed.
(b) As a result of the insurer finding that her injuries were minor, her ongoing medical expenses and weeklies would no longer be paid 26 weeks after the accident.
(c) Sick leave taken to attend medical appointments during work hours ought to be reimbursed.
38.The first two points relate to the insurer's minor injury findings.
39.Mrs Deering affirms in these submissions that her employer is expecting to be repaid the leave she took while attending medical appointments.
Insurer’s submissions dated 22 September 2020[10]
[10] R1-Insurer’s Submissions-Rachel Deering
40.This submission, provided by McCabe Curwood Lawyers, argues that Mrs Deering's claim is not open-ended but for a closed period between 7 November 2018 to 29 December 2018, due to the operation of section 6.13(2), which requires that any claim for statutory benefits must be lodged within 28 days of the date of accident for a claim to be backdated.
41.The claim form is referred to in this document as being lodged on 7 November 2018.
42.In Mrs Deering's submissions, she refers to lodging her claim earlier than this and submits that she satisfied the requirements of section 6.13(2) of the MAI Act.[11]
[11] Submissions from Claimant, Attachment 1[2b], [8a]; Rachel Deering-Application for Review [11], [14–15]; AD1
43.Mrs Deering is claiming full reimbursement of leave (characterised as wages paid while attending medical appointments) from 29 June 2018 to 29 December 2020.
44.The insurer says that as the claim form was not lodged until 7 November 2018, due to the operation of this part of s 6.13 of the MAI Act, weekly payments for the loss of income from personal exertion could not commence until the date of lodgement.
45.Further, the insurer submits that the claim for weekly payments ceases after 26 weeks post-accident (29 December 2018) due to Mrs Deering's injuries being assessed as minor (as defined under the MAI Act).[12]
[12] 3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—…
(b) the person’s only injuries resulting from the motor accident were minor injuries.
46.The insurer tabulates 11 treatment attendances as being the only sums in dispute.
47.These attendances are between 8 November 2018 and 24 December 2018 with a total value of $1,613.27 at $133.33 per hour.
48.No submissions are made in relation to the amount of Mrs Deering’s pre-accident weekly earnings (PAWE).
49.The insurer disputes Mrs Deering's entitlement to weekly payments on the basis, pertinently to the internal review decision under Division 3.3 of the MAI Act, that she did not demonstrate a loss of wages with relevant payslips showing her pay was docked, or evidence of an agreement that time off work would have to be refunded to her employer.
Mrs Deering’s submissions dated 27 October 2020[13]
[13] Submissions from the claimant.
50.Attachment 1 to this letter traverses each paragraph of the insurer’s submissions dated 22 September 2020. This summary will only address the Division 3.3 of the MAI Act aspects.
51.At [7] Mrs Deering confirms she is “claiming for lost wages from date of accident.”
52.Addressing [8(b)] of the insurer's submissions, Mrs Deering confirmed that the insurer has failed to pay her “lost wages”.
53.At [11(b)] she refers to attachment 3, which is her letter to SIRA dated 30 July 2020 stating she repaid her employer for the time taken off to attend medical appointments with bank details confirming that on 30 July 2020 she repaid her employer a total of $18,424.94.
54.Attachment 4 to the submissions, as referred to at [11(d)] of attachment 1, is her employer's letter to SIRA dated 29 July 2020, which states that the employer and Mrs Deering agreed that Mrs Deering was expected to repay her employer for any time lost from work due to her attending medical appointments related to the motor accident.
55.Attachment 5 is her employer’s letter dated 31 July 2020, which acknowledges that Mrs Deering repaid the sum equivalent to the “lost wages” she is seeking.
Merit Review dated 3 December 2020
56.The merit reviewer refers to the reviewable decision made 28 February 2020 but did not review that decision
57.The merit reviewer then refers at [3], to the internal review certificate dated 15 May 2020, which confirms the original decision to deny reimbursement of sick leave dated 28 February 2020.
58.At [6.1], [6.3] and [6.4] the merit reviewer refers to the employer's letter and material supporting the proposition that Mrs Deering was out-of-pocket for her attendances for treatment.
59.In the merit reviewer’s reasons at [12] to [19], the merit reviewer begins a discussion of the non-reimbursement of wages to Mrs Deering's employer but does not engage with Mrs Deering’s proposition that this leave was repaid.
60.The merit reviewer states that the insurer has agreed to pay Mrs Deering for the period 7 November 2018 to 29 December 2018 in the sum of $1,613.29. This is not the case.
61.The merit reviewer determined that because of the date the claim was made, Mrs Deering cannot receive any weekly payments between the date of accident and the date of lodgement, (being four months and nine days after the accident).
62.At [29] the merit reviewer states that the question of whether sick leave can be reimbursed is not before her.
63.The merit reviewer affirmed the insurer’s internal review decision.
Mrs Deering’s submissions dated 28 December 2020[14]
[14] Rachel Deering-Application for Review.
64.Mrs Deering’s submissions in this letter at [3] addresses the claim that her employer had to be reimbursed for the time she was away from work attending medical treatment.
65.At [14 to 16] Mrs Deering asserts that she attempted to lodge her almost immediately after the date of accident. Her attempts were frustrated by the insurers. As such her claim ought to be treated as being lodged in accordance with section 6.13(2) of the MAI Act and be paid from the date she first attempted to lodge her claim.
Insurer’s submissions 29 January 2021 from McCabe Curwood[15]
[15] R1-Insurer’s Submissions.
66.The insurer submits that Merit Reviewer White has not erred in her findings and has correctly determined that section 6.13(2) of the MAI Act applies to Mrs Deering’s application, that is Mrs Deering’s time away from work could not be reimbursed prior to the lodgement date as it was more than 28 days after the accident.
67.The insurer also disputes Mrs Deering's entitlement to weekly payments under Division 3.3 of the MAI Act on the basis that she did not demonstrate a loss of wages or provide evidence of a contemporaneous agreement that time off work would have to be refunded to her employer.
68.The insurer notes that Mrs Deering’s minor injury status was determined in Medical Assessment Certificates (MAC) issued 29 October 2020 (visual system)[16] and 21 November 2020 (head, cervical spine and left shoulder), which confirmed that her injuries were minor for the purpose of the MAI Act[17].
[16] R4.
[17] R3.
Mrs Deering’s submissions 18 February 2021[18]
[18] _Rachel Deering – Application for Review-Additional Submissions-unlocked.
69.Mrs Deering’s submissions dated 18 February 2021 do not address the issues under Division 3.3 of the MAI Act.
Reasons
70. As a review panel we are empowered to affirm or set aside the decision of single merit reviewer under section 7.15 of the MAI Act.[19]
[19] 7.15 Review of merit review decision by review panel71.As we read them, Mrs Deering’s numerous submissions indicate that her concerns are:
(a) Recovery of wages for time off to attend medical treatment;
(b) when her entitlement to statutory benefits commenced, and
(c) when those benefits ceased.
72.As recorded earlier in these reasons, neither the Merit Reviewer nor this Merit Review Panel have jurisdiction to determine whether the insurer is entitled to refuse or has to start payments of statutory benefits in accordance with section 6.13 of the MAI Act.
73.Likewise, the Panel does not have jurisdiction to determine whether the insurer is entitled to apply section 3.11(1)(b) of the MAI Act to refuse payment of statutory benefits on the basis that the accident-related injuries are minor.
74.However, the Panel has jurisdiction to determine the amount of statutory benefits that are payable under Division 3.3 of the MAI Act and whether Mrs Deering has suffered a loss of earnings, which is the matter this Panel can decide upon.
75.The Merit Review dated 3 December 2020 affirmed the insurer’s internal review decision to decline Mrs Deering’s claim for loss of earnings but did not provide reasons addressing that issue.
76.It is not disputed that:
(a) Mrs Deering meets the definition of an earner under Schedule 1, clause 2, of the MAI Act.
(b) Mrs Deering was employed as a legal practice business manager at the relevant times.
77.The evidence before the Panel is that Mrs Deering was attending medical treatment during work hours.
78.Subject to the issue as to when her claim was lodged, which we cannot determine, and given that medical assessors have determined that her injuries caused by the accident are minor injuries, Mrs Deering’s entitlement to weekly payments of statutory benefits under Division 3.3 of the MAI Act is limited to the first 26 weeks after the date of accident.
79.Based on the date that her claim is said to have been lodged her entitlement to weekly payments were payable between 7 November 2019 and 29 December 2018.
80.Mrs Deering has provided correspondence that confirms she has repaid her employer for time away from work to attend treatment. She has, in those circumstances, incurred a loss of earnings.
81.Attachment 3 of Mrs Deering’s submissions dated 27 October 2020 is a copy of her letter to SIRA dated 30 July 2020 stating she has repaid her employer for the time taken off to attend medical appointments. The letter contains bank details confirming $18,424.94 was repaid to Mrs Deering's employer on 30 July 2020.
82.Attachment 4 to those submissions is her employer's letter to SIRA dated 29 July 2020, which states that it was agreed that Mrs Deering was expected to repay her employer for any time lost from work due to her attending medical appointments related to the motor accident.
83.Mrs Deering is entitled to weekly payments of statutory benefits to the extent that she suffered a loss of earnings on those occasions she attended her treatment providers in relation to injuries she sustained in the motor accident, subject to the limitations imposed by sections 3.11 and 6.13(2) of the MAI Act.
Conclusion
84.The Panel makes the following findings:
a. In relation to the merit review decision by a single Merit Reviewer, the Merit Review Panel sets aside the Merit Reviewer’s decision dated 3 December 2020 and substitutes the following decision:
i.The leave, which Mrs Deering used to attend medical appointments related to the accident, was conditional on being repaid to her employer and has been repaid. Accordingly, Mrs Deering has incurred a loss of earnings pursuant to Schedule 1, Clause 3 of the MAI Act.
ii.Mrs Deering is entitled to weekly payments of statutory benefits to the extent that she suffered a loss of earnings on those occasions she attended her treatment providers in relation to injuries she sustained in the motor accident.
b. As Mrs Deering was self-represented there is no order as to costs.
Terence O'Riain
Merit Reviewer on behalf of the Review Panel
Personal Injury Commission
The following matters are declared to be merit review matters for the purposes of Part 7—
(a) the amount of statutory benefits that is payable under section 3.4 (Statutory benefits for funeral
expenses) or under Division 3.3 (Weekly payments of statutory benefits to injured persons)…
(1) A claimant or an insurer may apply to the President to refer a decision of a single merit reviewer determining a merit review application to a review panel of merit reviewers for review.
(2) An application for the referral of a decision to a review panel may only be made on the grounds that the decision was incorrect in a material respect.
(3) The President is to refer the application to a panel of at least 2 merit reviewers, but only if the President is satisfied that there is reasonable cause to suspect that the decision determining the
review was incorrect in a material respect having regard to the particulars set out in the application.
(4)The review panel may confirm the decision of the single merit reviewer, or set aside the decision and make a decision in substitution for the decision the review panel set aside.
(5)Section 7.14 (Effect of merit review decision) applies to any new decision made by a review panel under this section.
(6)An application under this section must be made within 28 days after the parties to the merit
review were issued with a certificate referred to in section 7.13(4) as to the merit reviewer’s determination.
(1) A claimant or an insurer may apply to the President to refer a decision of a single merit reviewer determining a merit review application to a review panel of merit reviewers for review.
(2) An application for the referral of a decision to a review panel may only be made on the grounds that the decision was incorrect in a material respect.
(3) The President is to refer the application to a panel of at least 2 merit reviewers, but only if the President is satisfied that there is reasonable cause to suspect that the decision determining the review was incorrect in a material respect having regard to the particulars set out in the application.
(4) The review panel may confirm the decision of the single merit reviewer, or set aside the decision and make a decision in substitution for the decision the review panel set aside.
(5) Section 7.14 (Effect of merit review decision) applies to any new decision made by a review panel under this section.
(6) An application under this section must be made within 28 days after the parties to the merit review were issued with a certificate referred to in section 7.13(4) as to the merit reviewer’s determination.
0
0
0