Elliot v AAI Limited t/as AAMI

[2023] NSWPIC 82

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Elliot v AAI Limited t/as AAMI [2023] NSWPIC 82

Claimant:

Alex Elliot

insurer:

AAI Limited t/as AAMI

Member:

Ray Plibersek

DATE OF DECISION:

3 March 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant badly injured and immobilised and in considerable pain for about a month after his accident; application for a claim for statutory benefits made 28 days after the motor accident; section 6.13(2); can time be extended; do exceptional circumstances apply; Held - insurer is entitled to refuse payment of weekly payments of statutory benefits for the period before the claim was made under subsection 6.13(2); time for making the claim cannot be extended; insurer entitled to refuse payment if claim made after 28 days; “black-and-white” or mandatory requirement in the legislation; no discretion in the insurer or any Member of the Personal Injury Commission to allow for an extension of time or for any exceptional or other extenuating circumstances where a claim is made outside the strict 28 day period specified in the legislation; in this case however subsection 6.19 applied to require the payment; insurer’s liability notice to claimant accepted liability to pay weekly payments of statutory benefits from the date of the accident; on internal review the insurer then decided not to pay weekly benefits because the application was made outside the 28 day time limit mandated under subsection 6.13; under subsection 6.19(6) once the insurer has accepted liability then it must without delay commence payment of those statutory benefits; if the insurer subsequently denies liability it cannot recover those payments of statutory benefits already made; adverse comment made that insurer did not initially produce the insurer’s letter admitting liability for the first 26 weeks; AFQ v GIO Insurance, AMJ v AAMI Insurance Ltd (Claims Assessment), ALP v GIO Insurance (Claims Assessment), Kennedy v GIO Insurance (Australia) Ltd and Whittington v AAI Limited t/as AAMI considered and distinguished.  

determinations made:

Certificate

Issued under s 6.13 of the Motor Accident Injuries Act 2017

Determination

1.     The claim for weekly payments of statutory benefits are payable by the insurer from the date of the motor accident on 29 November 2022.

2.     Legal costs are nil as the claimant was self-represented.

BACKGROUND AND INTRODUCTION

This determination relates to a dispute about an application for weekly payment of statutory benefits under s 6.13 of the Motor Accident Injuries Act 2017.

1. On 29 November 2022 the claimant, Mr Alex Elliot was injured in a motor vehicle accident on Appin Road, Appin. Mr Elliott reported having a fractured sternum as his injury.

2. Mr Elliott wrote that he was in a great deal of pain as a result of his injury and was on opiate medication and was also immobilised for about four weeks.

3. On 10 January 2023 Mr Elliott lodged an online claim form.

4. On 13 January 2023 the insurer advised Mr Elliott that his claim was incomplete because he had not completed the required statutory declaration or a certificate of fitness.

5. On 16 January 2023 Mr Elliott requested an internal review of the insurer’s decision to deny him weekly payments of statutory benefits from the date of the accident on
   29 November 2022.

6. On 24 January 2023 the insurer advised that it affirmed its original decision. The insurer declined the claim for statutory benefits on the basis that the claim was not made within the required 28 days of the date of the motor accident, (R6).

7. In his digital claim form the claimant indicated he was off work due to the accident for 29 days and was away from work from 30 November 2022 until 9 January 2023 when he resumed work, (R2).

8. The dispute comes before me to determine if the claimant can receive payments for his claim for statutory benefits even if not made within the 28 day period specified in s 6.13 of the Motor Accident Injuries Act 2017 (the MAI Act).

STATEMENTS

1. I have considered the documents provided with the claim form, the reply and further information including the parties submissions and the claimant’s statement in his application form.

2. I will first briefly summarise the claimant’s explanation contained in his application form and then review the submissions made by the insurer.

Submissions

Claimant’s submissions – dated 27 January 2023 

1. The claimant provided a brief written statement as to why his application for the payment of statutory benefits was outside the 28 day time limit specified in the MAI Act. In his application dated 27 January 2023 Mr Elliott wrote in his application form as follows:

   “My CTP claim for lost wages was denied (for the period of 30/11/22-09/01-23) due to the fact I did not notify AAMI within 28 days of my accident. My grounds for dispute are; I sustained a significant injury (broken displaced sternum). I was in a great deal of pain and was immobile for around 4 weeks. I was also on heavy opiate painkillers for that period, which affected me immensely. I have never been in a serious accident before and was not aware of the process until it was brought to my attention by a friend. There is no awareness of the 28 day legislation. AAMI have been my CTP insurer for the last ten years, each year I've received my green slip there has never been any information on it stating the 28 day legislation. There is no awareness by AAMI.

   Requested outcome

   My loss of income (wages) for period of 30/11/22-09/01/23 to be reimbursed.

   Unique circumstances

   my claim has been through internal review process and was denied.”

Insurer’s submissions – dated 17 February 2023

1. In written submissions dated 17 February 2023 the insurer writes that it advised Mr Elliott that as his claim was made more than 28 days after the accident his entitlement to weekly payments of statutory benefits would only start from the date that AAMI received a completed statutory declaration or certificate of fitness.

2. In its written submissions the insurer quoted s 6.13(2) of the MAI Act and also quoted cl 4.15 of the Motor Accident Guidelines (the Guidelines). The insurer argued that both the legislation and the Guidelines were clear and unambiguous and there was no discretion to permit AAMI to make any weekly payments of statutory benefits prior to when the claim was made if it were not made within 28 days of the date of the accident. The insurer emphasised that there was no provision in the MAI Act which allowed an extension of the 28 day period where compliance with that time limit was mandatory.

3. The insurer’s submission concluded with a list of a number of cases which dealt with s 6.13 of the MAI Act as follows:

   a)    AFQ v GIO Insurance [2019] NSWDRS CA 143 – SIRA;

   b)     AMJ v AAMI Insurance Ltd (Claims Assessment) [2020] NSWSIRADRS 119
   (26 May 2020) v GIO Insurance (Claims Assessment) [2020] NSWSIRADRS 99 (31 May 2020) Kennedy v GIO Insurance (Australia) Ltd [2022] NSWPIC 62 (11 February 2022) and

   e) Whittington v AAI Limited t/as AAMI [2022] NSWPIC 567 (24 August 2022) LEGISLATION

   1. The legislation relevant to this late claim can be briefly summarised as follows.

   2. Sub-section 6.13(2) of the MAI Act provides that 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 for any period before the claim is made.

   3. “Claim” is defined in s 1.4 of the MAI Act to mean a claim for statutory benefits or a claim for damages.

   4. Section 6.13 provides (in part):

      “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%.”

   5. Whether for the purposes of part 6 (Motor accident claims) the insurer is entitled to refuse payment of statutory benefits in accordance with s 6.13 is declared to be a miscellaneous claims assessment matter for the purposes of part 7 by Schedule 2 sub-cl 3(k) of the MAI Act.

   CONSIDERATION

   1. As referred to above, s 6.13 is a “black-and-white” or mandatory requirement in the legislation. As the legislation is presently drafted, there is no discretion in the insurer or any member of the Commission to allow for an extension of time or for any exceptional or other extenuating circumstances where a claim is made outside the strict 28 day period specified in the legislation.

   2. Unfortunately for Mr Elliott in this case, he was badly injured and immobilised and in considerable pain for about a month after his accident. He told the Commission hearing on 27 February 2023 that he tried on a number of occasions to telephone the insurer enquiring about his claim and left messages but no one called him back.

   3. At the Commission hearing on 27 February 2023 I advised the parties that given the strict wording of s 6.13 of the MAI Act, as I had no power or discretion to extend the time limit, I would have to find against Mr Elliott’s review application which sought a finding that the insurer make weekly payments of statutory benefits prior to his claim being made.

   4. In writing these reasons for decision I noted that the insurer had not supplied a copy of the liability notice dated 19 January 2023. I note that the insurer in its internal review decision referred in detail to a letter dated 19 January 2023 where the insurer’s claims team acknowledge the claim and advised the claimant that he would receive a liability decision regarding his eligibility for benefits for the first 26 weeks. A copy of this letter was attached to the insurer’s bundle of documents. The insurer’s internal review decision referred to a second letter dated 19 January 2023 which apparently advised the claimant that liability for his claim had been accepted for the first 26 weeks.[1]

      [1] insurers bundle of documents, AD p 33

   5. After noting that the second letter dated 19 January 2023 had not been supplied to the Commission in the portal, I requested a copy of that letter. The letter was produced by the insurer and filed in the portal on 3 March 2023. The letter was entitled liability notice – benefit for up to 26 weeks. The letter confirmed that the insurer accepted liability for the claimant statutory benefits for the first 26 weeks from the date of the motor accident. The letter further stated that the claimant’s entitlement to benefits starts on 29 November 2022 [the date of the accident], and the claimant’s entitlement to benefit ends on 30 May 2023.

   6. The second letter dated 19 January 2023 which admitted liability for the first 26 weeks should have been produced by the insurer in its bundle of documents sent to the Commission. As the letter dealt with the insurer’s admission of liability it was crucial in these proceedings and as shown below had a material outcome in the disposition of this case. Given that the claimant was self-represented there is an additional expectation on the insurer to have produced this letter in evidence before the Commission. In all the circumstances the insurer should have produced the letter to the Commission rather than trying to avoid producing it and dealing with the implications of the content of the letter to the outcome of this case.

   7. Briefly, the chronology of the application and internal review are as follows. On
      10 January 2023 Mr Elliott lodged an online claim form. On 13 January 2023 the insurer advised Mr Elliott that his claim was incomplete because he had not completed the required statutory declaration or a certificate of fitness. On 16 January 2023 Mr Elliott requested an internal review of the insurer’s decision to deny him weekly payments of statutory benefits from the date of the accident on 29 November 2022. On 24 January 2023, in its internal review decision, the insurer advised that it affirmed its original decision.

   8. Although this is speculation, it may be that if Mr Elliott had not requested an internal review the insurer may not have detected the failure to comply with the 28 day time limit and it may not have realised that it admitted liability from the date of the accident which was made in its letter dated 19 January 2023.

   9. The case law referred to above is clear. Unfair as it seems, if a claim is not made within the mandatory 28 day period, no statutory benefits are payable until such time as a valid claim is made. If the case law is followed, despite the apparent unfairness, the insurer submits that the Commission may not direct or order that the insurer pay any statutory benefits to
      Mr Elliott for the period before he was able to make his application.

   10. Notwithstanding the case law referred to by the insurer in its written submissions, there may be a basis upon which Mr Elliott can be paid his weekly payments of statutory benefits.

   11. Section 6.19 relevantly provides, in part, as follows:

       “6.19 Acceptance of liability for claim for statutory benefits

       (5)  An insurer is not prevented from accepting liability for statutory benefits after having denied that liability and the acceptance of liability does not prevent the subsequent denial of liability.

       (6)  An insurer who has accepted (or is deemed to have accepted) liability for statutory benefits must commence payment of statutory benefits without delay. An insurer cannot recover statutory benefits paid on the basis of the acceptance of liability for statutory benefits if the insurer subsequently denies liability.”

   12. In Mr Elliott’s case the insurer accepted liability for statutory benefits for a period of 26 weeks from the date of the accident on 29 November 2022. The insurer informed Mr Elliott of its decision by letter dated 19 January 2023. The insurer then subsequently determined in its internal review decision dated 24 January 2023 that it declined the claim for statutory benefits on the basis that the claim was not made within the required 28 days of the date of the motor accident.

   13. Under s 6.19(5), if the insurer has initially accepted liability it is not prevented from subsequently denying liability for the payment of statutory benefits. However, s 6.19(6) provides that where an insurer has accepted liability for statutory benefits it must commence payment without delay and crucially an insurer cannot recover statutory benefits paid on the basis of the acceptance of liability even if the insurer subsequently denies liability.

   14. Accordingly, by application of s 6.19(6) in the circumstances of Mr Elliott’s case, once the insurer has accepted liability (which it did in its letter dated 19 January 2023) then the insurer must without delay commence payment of those statutory benefits to Mr Elliott. The insurer is entitled to then deny liability, which it did in its internal review decision, but crucially for
       Mr Elliott, it cannot recover those payments of statutory benefits even if the insurer subsequently denies liability.

   15. In Mr Elliott’s case the insurer had not yet commenced making payments of statutory benefits but it had admitted liability in its letter of 19 January 2023. It was at this point that the insurer’s legal obligation to pay the statutory benefits arose. Despite its initial error or miscalculation of the 28 day period, the insurer had admitted liability to pay the benefits and it should have done so. Even if the insurer subsequently changed its liability decision, which it did, it still has an obligation to commence payment of the weekly benefit which it could not then recover if it’s changed its decision on liability.

   16. Accordingly, in all the circumstances of this case and based upon my reading of s 6.19 of the MAI Act, the insurer is to pay Mr Elliott the claimed lost wages that he incurred due to the motor vehicle accident from the date of the accident on 29 November 2022.

   Conclusion

   1. I am satisfied that the claimant has an entitlement to payment of weekly statutory benefits from the date of the accident on 29 November 2022 until 30 May 2023 based upon the liability notice from the insurer dated 19 January 2023.

   Legal costs

   1. Because Mr Elliott was self-represented legal costs cannot be awarded for this dispute.