Foroosh v QBE Insurance (Australia) Limited
[2022] NSWPICMR 57
•1 September 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Foroosh v QBE Insurance (Australia) Limited [2022] NSWPICMR 57 |
| ClaimanT: | Shahram Hajhashem Dookhteh Foroosh |
| Insurer: | QBE Insurance (Australia) Limited |
| Merit Reviewer: | Gary Patterson |
| DATE OF DECISION: | 1 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Reviewable decision; insurer’s refusal to pay costs of whole person impairment dispute before completion of damages claim; not a Merit Review matter; Held – decision affirmed; no order as to costs. |
| Determinations made: | 1. The reviewable decision is affirmed. 2. This determination takes effect on 20 September 2022. 3. No order as to costs. |
STATEMENT OF REASONS – MERIT REVIEW DETERMINATION
Issued in accordance with s 7.13(4) of the Motor Accidents Injuries Act 2017
BACKGROUND
This determination relates to a merit review matter which is defined in s 7.10 of the Motor Accidents Injuries Act 2017 (the Act) as a matter declared by Schedule 2 of the Act to be a merit review matter.
Merit Review matters are prescribed by cl 1 of Schedule 2 of the Act.
Merit Review matters arise for determination under Part 7 Division 7.4 of the Act.
Merit Review matters generally have to do with decisions made by the insurer in relation to payment of statutory benefits, and the conduct of the parties and other prescribed matters in relation to the conduct of such claims.
Statutory benefits are defined by s 1.4 of the Act to mean statutory benefits payable under Part 3 of the Act.
Part 12 of the Personal Injury Commission Rules governs merit review proceedings.
Certain provisions of Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) apply to merit review matters by operation of PIC Rule 114.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3)If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Direction PIC 2, the documents that are before me and the parties’ acceptance that the dispute can be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing. It follows this is the appropriate course in the circumstances.
INTRODUCTION
This is an application for payment of necessary and reasonable legal costs for a statutory dispute in relation to Shahram Hajhashem Dookhteh Foroosh’s (the claimant) whole person impairment.
The claimant requested a concession from the insurer that the claimant’s whole person impairment exceeded 10% which the insurer refused.
The claimant subsequently requested an internal review in which the insurer maintained its position.
As there was a dispute regarding the claimant’s entitlement to damages for non-economic loss, the claimant lodged with the Personal Injury Commission an application for determination of a whole person impairment dispute.
A Medical Assessor determined that the claimant’s whole person impairment does not exceed 10%. It is accepted that there is no entitlement to damages for non-economic loss.
No General Assessment Application has been lodged at this time.
On 8 April 2022, following determination of the whole person impairment dispute, the claimant submitted an assessed tax invoice in the sum of $5,817.77 bearing the same date.
The insurer’s solicitors informed the claimant’s solicitors, by email on 14 April 2022, that the insurer did not agree that the regulated costs associated with the permanent impairment dispute were payable until the conclusion of the claim, when they are either agreed by the parties or assessed.
The claimant disagrees with the insurer’s assertion that the regulated costs are not payable at this time.
The claimant submits that “the permanent impairment dispute is a statutory dispute and the claimant is entitled to claim costs in accordance with Part 1 Dispute Resolution, 2 Medical Disputes, (1) in Schedule 1 of the Motor Accident Injuries Regulation 2017” [sic].
The claimant notes that, in addition to determining whether or not the claimant is entitled to claim non-economic loss damages, the level of impairment is determinative of a claimant’s statutory entitlements, including weekly benefits, pursuant to s 3.12 of the Act.
The claimant submits that the legislation envisages and makes it clear that a determination of a whole person impairment dispute is relevant and determinative to both a common law damages claim and the entitlement to statutory benefits claim under the Act. Accordingly, it is submitted, the claimant is entitled to recover such reasonable and necessary legal costs, as they pertained to the medical dispute.
The claimant submits the costs claimed for the dispute were reasonable and necessary in pursuing the claimant’s statutory entitlement which the insurer had disputed.
The claimant submits that the significant amount of material that needed to be considered in preparing the application should be taken into account.
In light of the circumstances above, the claimant submits that the assessed tax invoice in the sum of $5,817.77, dated 8 April 2022, is for reasonable and necessary legal costs for a statutory dispute in relation to the claimant’s whole person impairment.
The claimant submits that the insurer’s assertion that the costs of a whole person impairment medical dispute are not payable until the conclusion of a common law damages claim should be rejected.
The claimant notes there are circumstances where a claimant may not be able to successfully resolve a common law damage claim despite being entitled to make it.
I have considered the Insurer’s Submissions dated 28 June 2022 and the documents attached to those submissions.
LEGISLATION
In making my decision, I have considered the following legislation and guidelines:
(a) Part 7, Division 7.4 of the Act.
(b) Schedule 2 of the Act.
(c) Part 12 of the Personal Injury Commission Rules.
(d) Procedural Direction MA2 – Merit Review.
DETERMINATION
I consider that the merit review application sufficiently details the alternative decision sought in the merit review as it emerges from the claimant’s submissions.
As no details have been provided of any regulated costs sought for this merit review application, I shall invite further submissions in relation to costs.
I have not seen previously an application for costs in a whole person impairment dispute where there no general assessment application has been determined.
I must firstly decide if there is jurisdiction to entertain the application before I proceed to consider what the correct and preferable decision is (Procedural Direction MA2 – Merit Review – paragraph 28).
As I noted previously, “statutory benefits” are dealt with under Part 3 of the Act.
Damages for non-economic loss are awarded under Division 4.3 of Part 4 of the Act.
The jurisdiction of the Personal Injury Commission to determine merit review matters arises under cl 1 of Schedule 2 to the Act.
I see no provision in Schedule 2 of the Act which prescribes, as a merit review matter, a dispute in relation to the costs of a whole person impairment assessment, for the purpose of establishing an entitlement to damages for non-economic loss, under part 4 of the Act.
If the claimant’s submission were correct, I would expect that Schedule 2 to the Act would say so explicitly.
I reject the claimant’s submission that a permanent impairment dispute is a statutory dispute entitling the claimant to costs under Schedule 1 of the Motor Accident Injuries Regulation 2017. The term “statutory dispute” is not defined by the Act, the 2020 Act or the Motor Accident Injuries Regulation (“the Regulation”).
The claimant’s alternative submission is that the level of impairment is relevant to entitlement to weekly benefits, pursuant to s 3.12 of the Act. I have not been made aware of any dispute arising under that provision. The insurer’s submissions at photographs 13 to 16 to address that issue. I accept those submissions.
It seems to be a necessary implication of the claimant’s submission that such an entitlement to costs arises independently of an application for general assessment.
I have not been directed to any relevant provision of the Act, the 2020 Act, the Regulations or Rules, nor any relevant authority or published decision of the Personal Injury Commission, which supports that submission.
That being the case, this application is misconceived and must be dismissed, pursuant to s 54(2) of the 2020 Act. There is no reason for me to deal with the matters contained in paragraphs 18 to 30 of the Insurer’s Submissions. There will be no order for costs.
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