Palisi v AAI Limited t/as GIO
[2021] NSWPIC 480
•24 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Palisi v AAI Limited t/as GIO [2021] NSWPIC 480 |
| CLAIMANT: | Antoinette Palisi |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 24 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - The reviewable decision is about whether for the purposes of section 6.13(2) of the Motor Accident Injuries Act 2017 (MAI Act) the Claimant’s weekly benefits can be backdated to the date of accident when the Application for Personal Injury Benefits was lodged more than 28 days after the date of accident, and is therefore a miscellaneous assessment matter under Schedule 2(3) (k) of the MAI Act; Held - section 6.13(2) the insurer may not pay weekly benefits prior to the claimant lodging the Application for Personal Injury Benefits on 30 July 2021; the amount of the claimant’s costs in the matter is $nil; Motor Accident Injuries Regulation 2017; Motor Accident Guidelines 2017; motor vehicle accident; statutory benefits; Section 6.13(2) of the MAI Act; Personal Injury Commission Regulation 2020; on the papers; miscellaneous assessment; weekly benefits; application for personal injury benefits; claim form; time limit; limitation period 28 days; no exceptions; explanation not applicable. |
| DETERMINATIONS MADE: | In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. In accordance with section 6.13(2) the insurer may not pay weekly benefits prior to the claimant lodging the Application for Personal Injury Benefits on 30 July 2021. 2. The amount of the claimant’s costs in the matter is $nil. A statement setting out the Commission’s reasons for the assessment are included with this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017 (MAI Act)
Background
This determination relates to section 6.13(2) of the MAI Act.
On 27 May 2021 Ms Palisi was driving on The Boulevarde at Caringbah NSW when a vehicle travelling in the opposite direction made a right hand turn across her path. That vehicle collided with the front of her vehicle and she was injured. Emergency services attended the scene. Ms Palisi declined the ambulance officers’ offer to take her to hospital due to wanting to avoid possible COVID infection. This was an authentic concern, which the officers supported.
as a result of the accident Ms Palisi reports that she suffered the following injuries:
(a) whiplash
(b) back pain
(c) struck her head on her car’s headrest
(d) blurred vision and vision problems
(e) shoulder pain
(f) wrist pain
(g) ankle pain
(h) shock – slurred jumbled speech and shaking
(i) headaches
Ms Palisi has required specialist treatment, which was hampered due to the COVID emergency in Sydney.
Ms Palisi is self-employed and runs a business with her husband, Mr Leo Guterres and prior to the pandemic they worked together in the CBD.
Due to her injuries Ms Palisi could not work for four weeks after the accident and is still suffering disabilities arising from the accident.
Ms Palisi lodged an application for personal injury benefits claim form (claim form), which the insurer received on 30 July 2021.
The insurer accepted liability for weekly payments from the date the claim form was received, and for treatment from the date of accident, but declined to make weekly payments for any period up to the date the claim form was lodged.
This dispute has arisen because Ms Palisi lodged her claim form more than 28 days after the date of the accident. She sought an internal review of the insurer’s decision to decline weekly payments prior to the date the claim form was lodged.
The insurer’s internal reviewer affirmed the original decision.
Ms Palisi seeks to have the Commission evaluate her explanation for the delay as a miscellaneous assessment under Schedule 2(3)(k) of the MAI Act.
Having conducted a teleconference with the parties and considered both section 52 of the Personal Injury Commission Act 2020 (the PIC Act) and Procedural Direction PIC2.
I have determined that the matter can be determined on the papers provided. I am satisfied that sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding a formal hearing.
The rules of evidence do not apply to these proceedings and I may conduct this proceeding subject to the rule of procedural fairness.
Documents Considered
(a) Application for personal injury benefits;
(b) Insurer's reply;
(c) Application for Internal Review;
(d) Internal Review Decision, and
(e) Application to Dispute Resolution Service for Determination of a Miscellaneous Dispute.
Submissions
Ms Palisi made the following submissions as summarised:
(a) she did not know that there was a 28 day time limit to lodge a wages claim;
(b) notwithstanding the impact of her injuries and need for treatment, due to the simultaneous impact of the COVID emergency, she and her husband were preoccupied with relocating their office in order to keep the business operating, and
(c) although there was delay in being able to see her general practitioner, when she did see him he was concerned with treating her condition, rather than dealing with providing information about a possible compensation claim or providing a certificate of capacity
(d) There was further delay in locating the correct CTP insurer and when she contacted the insurer she was not advised of the “sensitive timeframe".
The insurer’s submissions put briefly are, although Ms Palisi provided an explanation for the delay in lodging her claim, the legislation is clear that weekly payments of statutory benefits cannot be paid for any period before a claim is made, if it is made more than 28 days after the accident.
The Insurer accepts the claimant did not know about the time limits.
Reasons
Section 6.13 of the MAI Act sets out the time for making claims for statutory benefits.
Section 6.13 (2) provides:
“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”.
Section 6.13 (2) of the MAI Act does not contain any provision for an explanation for the delay that makes exceptions to the operation of the provision.
This is in contrast to other time limits within the MAI Act and previous motor accident compensation legislation. For example, (Mr Guterres made this submission during the teleconference) section 6.13 (3) provides for an explanation for the delay if a claim is not made within three months from the date of the accident
Further examples are throughout the MAI Act.[1]
[1] section 6.14 (3) in respect of a claim for damages not made within timeThe wording of section 6.13(2) makes it clear that weekly benefits are not payable for the period before the claim form is submitted if the claim form is submitted more than 28 days after the accident.
I note that Ms Palisi was self-represented and accordingly her legal costs are nil.
Ms Palisi made relevant and compelling submissions, and it is clear she was dealing with difficult personal circumstances, combining treating her injuries, the impact on her business and the exigencies of the COVID emergency.
By way of comment, it is also clear that Ms Palisi’s reasons for delaying the claim were authentic.
Legislation
In making my decision I have considered the following legislation and guidelines:
·MAI Act sections 6.13(1), 6.13(2), 6.13(3), Schedule 2(3)(h) & (k), and
·Motor Accident Injuries Regulation 2017.
Conclusion
In accordance with Division 7.6 of the MAI Act, the Commission’s assessment is:
27. In accordance with section 6.13(2) the insurer may not pay weekly benefits prior to the claimant lodging the Application for Personal Injury Benefits on 30 July 2021.
28. The amount of the claimant’s costs in the matter is $nil.
A statement setting out the Commission’s reasons for the assessment are included with this certificate.
Terence O'Riain
Member (Motor Accidents Division)
Personal Injury Commission
section 7.33 in respect of referring claims for assessment
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