Lianos v Allianz Australia Insurance Limited
[2024] NSWPICMR 66
•29 August 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Lianos v Allianz Australia Insurance Limited [2024] NSWPICMR 66 |
CLAIMANT: | John Lianos |
INSURER: | Allianz |
MERIT REVIEWER: | Katherine Ruschen |
DATE OF DECISION: | 29 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 section 3.24(1); Personal Injury Commission Act 2020 sections 42 and 54; merit review; whether cost of treatment and care provided or to be provided to the claimant is reasonable; compliance with directions; power to dismiss proceedings; Held – the application for a merit review is dismissed. |
DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION The reviewable decision is about whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of s 3.24(1) (Entitlement to statutory benefits for treatment and care) of the Motor Accident Injuries Act 2017 (the MAI Act) and is therefore a merit review matter under Schedule 2(1)(i) of the MAI Act. 1. Pursuant to s 54(c) of the Personal Injury Commission Act 2020 and rule 77(b)(ii) and/or in the alternative, rule 77(b)(iii) of the Personal Injury Commission Rules the application for a merit review is dismissed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between John Lianos (the claimant) and the insurer about the whether the cost of treatment and care, namely travel costs, is reasonable for the purpose of s 3.24(1) of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant was involved in a motor accident on 24 July 2021.
On 17 August 2021 the claimant lodged an application for personal injury benefits.
On 23 May 2024 the insurer declined the claimant’s request for reimbursement of travel expenses said to be in connection with obtaining medical treatment.
The claimant requested an internal review of the insurer’s decision to decline reimbursement of travel expenses.
On 4 June 2024 the insurer issued their internal review decision in which they affirmed their decision to decline reimbursement of travel expenses.
The claimant has requested a merit review of the insurer’s internal review decision dated 4 June 2024 (the Application).
SUBMISSIONS
The claimant seeks reimbursement of 86 separate travel charges which he contends relate to attendances on treatment providers in respect of injuries resulting from the motor accident. No submissions have been lodged by the claimant in support of the merit review application. In his application for an internal review the claimant simply stated that he had “provided all information”.
The insurer submits that insufficient information has been provided to determine whether the travel expenses were in fact incurred for attendances on medical practitioners. Various anomalies are noted by the insurer, including that some of the addresses that the claimant travelled to are not attached to any medical or other health care provider but are, for example an address of a restaurant. The insurer has made repeat requests to the claimant for further information, but the claimant has not complied.
REASONS
A teleconference was conducted with the parties on 9 July 2024. During the teleconference it was raised that the claimant had provided insufficient information upon which to determine whether the claim for travel expenses is reasonable. As a result, on 9 July 2024 I issued directions to the parties as follows:
“DIRECTIONS
I am a Merit Reviewer to whom the above proceedings have been referred.
A teleconference was held with the parties on 9 July 2024.
In order to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings I make the following directions:
1. The insurer is to provide to the claimant, as agreed, by on or before 11 July 2024, a soft copy in word or amendable version of the schedule contained in the internal review decision listing the dates, amounts and to and from addresses for each travel expense claimed.
2. The claimant is, by 30 July 2024, to upload to the portal:
(a)an updated version of the above schedule which includes new columns in which the claimant identifies in respect of each travel expense the name, occupation and address of the treatment provider and the page number in the relevant document bundle where the following evidence can be found:
(i)evidence that the claimant has paid the travel expense; and
(i)evidence that on the date and at the time of the travel the claimant had scheduled and attended an appointment for medical or other treatment relating to the motor accident;
(b)a copy of his bank statements, which show the name of the account holder and the transactions recording payment for the travel expenses (the relevant transactions are to be highlighted by the claimant) for the period 9 February 2022 to 23 August 2023 (period over which travel is claimed);
(c)a copy of evidence of the appointments in respect of which travel expenses are claimed that establish the date of the appointment and that it was in respect of treatment relating to the motor accident (for example, GP progress notes for travel expenses to attend GP appointments); and
(d)any other submissions and/or documents on which the claimant relies.
[NOTE: the claimant’s current document bundle is illegible and will not be considered. Accordingly, if the claimant relies on any document not already included in the insurer’s document bundle the claimant must include these in a supplementary bundle. Any documents from the claimant’s original bundle to be included in the supplementary bundle must be submitted in clear, legible form. Documents already contained in the insurer’s bundle should not be duplicated. Instead, the claimant should reference the relevant page number in the insurer’s bundle where applicable.]
3. The insurer is, by 20 August 2024 to upload to the portal any further submissions and/or documents upon which the insurer relies.
4. It is noted that the matter may potentially resolve, or party resolve on provision by the claimant of the further information directed under direction 1 above and that in the period 30 July 2024 to 20 August 2024 the insurer will take steps to discuss potential resolution with the claimant. Accordingly, by on or before 27 August 2024 the claimant is to advise the Commission whether the Application has resolved and is withdrawn or whether it has partially resolved. If it has partially resolved the claimant is to identity that part of the claim that remains in dispute, to be determined in this merit review.
5. If all or any part of the dispute is continuing the matter will proceed to determination on the papers after 27 August 2024 unless either party has made a request by on or before 27 August 2024 for a further teleconference.”
As noted in the directions above, one purpose of the directions was to facilitate a potential resolution of the dispute, as the insurer had also been unable to consider whether the claimant’s travel expenses were reasonable due to the lack of information provided by the claimant. The insurer was willing to reconsider the claim for travel expenses upon receipt of the above prior to determination of this merit review.
Consideration
The claimant has failed to comply with the directions issued on 9 July 2024, which required compliance by the claimant by 30 July 2024.
On 7 August 2024 a dispute officer of the Personal Injury Commission (the Commission) followed up with the claimant to ascertain if or when the claimant intended to comply with the directions. No response was received.
On 14 August 2024 the insurer wrote to the Commission stating they were agreeable to a further 14 days for the claimant to comply and otherwise sought dismissal of the proceedings. The claimant did not respond to this message.
On 19 August 2024 the dispute officer advised the parties that I had extended the time for compliance by the claimant with the directions until 26 August 2024. The parties were also advised that if the claimant failed to comply with the directions by 26 August 2024 the matter may be dismissed, without further notice to the parties. No further documents have been received from the claimant.
On 27 August 2024 the dispute officer followed up again with the claimant’s solicitor about the claimant’s non-compliance with the 9 July 2024 directions. The dispute officer has reported that the claimant’s solicitor advised “that he was aware of the directions and that he has spoken to his client requesting the information, but his client has failed to provide the information and there is nothing further he can do”.
Compliance by the claimant with the directions dated 9 July 2024 is mandatory. By failing to comply with the directions the claimant is in breach of their obligations under s 42 of the Personal Injury Commission Act 2020 (PIC Act).
Given the claimant failed to provide the further information required by the directions I am unable to further consider the question of whether the travel expenses are reasonable costs for the purpose of s 3.24(1) of the MAI Act. As noted by the insurer, there are a number of anomalies not explained by the claimant, including that some of the travel expenses do not appear to be travel to an address connected with any medical or other healthcare provider. It is also unclear whether all Uber expenses claimed were incurred through the claimant’s Uber account or whether some or all are charges to third party accounts. There is no evidence of any corresponding medical appointments on the days of travel. Lastly, many of the pages in the claimant’s document bundle were noted in the directions as not being legible. The directions required the claimant to provide a replacement, legible document bundle but this has not been provided.
The directions for the claimant to provide further information ought not be onerous and the information should be readily available to the claimant.
Pursuant to the guiding principle in s 42 of the PIC Act the claimant and their solicitor are under a duty to cooperate with the Commission, including by complying with directions. Accordingly, compliance with the directions is mandatory. The claimant is in breach of the directions and their duty under s 42 of the PIC Act.
Pursuant to s 54 of the PIC Act the Commission may at any stage dismiss proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
The grounds specified under Rule 77 of the Personal Injury Commission Rules 2021 (the PIC Rules) for the purpose of s 54(c) of the PIC Act include:
(a) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President; or
(b) the applicant has failed to prosecute the proceedings with due despatch.
Pursuant to PIC Rule 114(1)(d) s 54 applies to merit review proceedings.
Pursuant to PIC Rule 114(2) “a function given to the Commission in section 42 … of the PIC Act is to be read as being given to the merit reviewer conducting the merit review proceedings”.
Pursuant to PIC Rule 114(3) “a function given to the Commission in section … 54 of the PIC Act is to be read as being given to the President”.
Pursuant to PIC Rule 9:
“A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
Pursuant to Rule 5(2)(d) applicable proceedings for the purpose of PIC Rule 9 include merit review proceedings.
Pursuant to PIC Rule 5 “merit review proceedings” are “proceedings before a merit reviewer under enabling legislation”. Accordingly, these proceedings are merit review proceedings for the purpose of s 54 of the MAI Act and PIC Rule 114.
Accordingly:
(a) pursuant to PIC Rule 114 as Merit Reviewer I have power to issue directions to the parties and for compliance with the directions by the parties to be compulsory under s 42 of the PIC Act, and
(b) pursuant to PIC Rules 114 and 9 I have power to strike out the proceedings or to take any step in the proceedings that could be made by the President. This includes the power to dismiss the proceedings under s 54(c) of the PIC Act and PIC Rule 77.
The claimant has failed to comply with the directions issued on 9 July 2024, without reasonable excuse. As a result, the claimant has failed to prosecute the proceedings with due despatch.
In the circumstances I have determined that pursuant to s 54(c) of the PIC Act and PIC Rule 77(b)(ii) and/or (iii) the proceedings should be dismissed.
CONCLUSION
For the reasons set out above the proceedings are dismissed on the basis:
(a) the claimant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President (PIC Rule 77(b)(ii)), and/or
(b) the claimant has failed to prosecute the proceedings with due despatch (PIC Rule 77(b)(iii)).
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines;
· Motor Accident Injuries Regulation 2017;
· the PIC Act, and
· the PIC Rules.
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