Pehlic v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 47
•9 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Pehlic v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 47 |
| Claimant: | Armina Pehlic |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Susan McTegg |
| DATE OF DECISION: | 9 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - The claimant was injured in a motor vehicle accident on 4 September 2022; dispute as to whether claimant submitted claim for statutory benefits on 12 September 2022 entitling claimant to statutory payments from the date of accident; whether claim included certificate from treating medical practitioner; consideration of clauses 4.19, 4.20, 4.21 and 4.61 of the Motor Accident Guidelines; Held – application for personal injury benefits lodged on 12 September 2022; Certificate of Fitness furnished to insurer on 17 October 2022; wording clause 4.21 of the Guidelines means it is a mandatory requirement to provide a certificate from a treating medical practitioner when giving notice of claim; claim non-compliant until 17 October 2022; no room for statutory interpretation of section 6.13(2) of the Motor Accident Injuries Act 2017; no discretion; claim not made within 28 days of accident and no entitlement to weekly statutory payments before 17 October 2022; costs assessed in favour of claimant. |
| determinations made: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of s 6.13(2) the insurer is entitled to refuse payment of weekly statutory benefits for the period before 17 October 2022. |
REASONS FOR DECISION
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
Ms Armina Pehlic (the claimant) sustained injury in a motor vehicle accident on
4 September 2022 (the accident).Insurance Australia Limited trading as NRMA Insurance is the insurer liable to pay statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
This determination relates to a miscellaneous claim, which is a reviewable decision under Schedule 2(3)(k) of the MAI Act about whether the insurer is entitled to refuse payment of statutory benefits for any period before the claim was made where the claim was not made within 28 days after the date of the accident.
RELEVANT LEGISLATION
Section 6.13 of the MAI Act is in the following terms:
“(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%.
(4) ….”
Part 4 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines make provision with respect to the manner in which insurers and those acting on their behalf are to deal with claims. Version 9 of the Guidelines commenced on 15 January 2023 and applies to motor accidents occurring on or after 1 December 2017.
Clause 4.15(b) of the Guidelines stipulates that to be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident notice of claim must be given to the insurer within 28 days after the date of the motor accident.
Clause 4.19 states the notice must be given in the following manner and must contain the following information:
“(a) For notice of a claim for statutory benefits for a personal injury claim using:
·the CTP Green Slip claim form – Application for personal injury benefits containing the information relevant to the claim as set out in Table 4.1 of Schedule 4.1, or
·the CTP Green Slip claim form – Online Application for Personal Injury Benefits containing the information relevant to the claim as set out in Table 4.2 of Schedule 4.1, or
·if submitted online using a claims submission system operated by the insurer - a form containing the information relevant to the claim as set out in Table 4.2 of Schedule 4.1.”
Table 4.1 of Schedule 4.1 sets out the information relevant to the claim required to be provided as follows: personal details; details of the accident; details of injuries alleged to have been sustained; details of hospital treatment; details of employment and of any absence from work as a result of the accident.
Clause 4.19(b) relates to notice of a claim for statutory benefits for funeral expenses and is relevant only to the extent that it assists in the interpretation of cl 4.21 of the Guidelines.
Clause 4.20 states:
“A claimant must provide a signed authority within the claim form authorising the insurer to release information and documents to relevant parties, and obtain information and documents relevant to the claim.”
Clause 4.21 states:
“In claims for personal injury, a claimant must also provide a certificate from a treating medical practitioner such as a Certificate of Fitness.”
Clauses 4.61 to 4.63 relate to non-compliance with providing evidence of fitness for work. Specifically, cl 4.61 states:
“4.61 Before an insurer can suspend weekly payments for failure of the claimant to comply with requirements for evidence as to fitness for work, the insurer must:
(a) contact the claimant (via the claimant’s preferred method of communication) to ensure that the claimant is aware of their duty to provide this evidence;
(b) clearly state to the claimant the consequences of not providing the evidence;
(c) provide the claimant with a reasonable time within which to comply;
(d) …
(e) …”
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and any further information provided by the parties.
CHRONOLOGY
The accident occurred on 4 September 2022.
The claimant provided a copy of an email dated 12 September 2022 purporting to be from Patrick Street Medical Centre, namely, [email protected] addressed to [email protected] which states:
“Please see the attached claim form the above patient”. No attachment to that email has been provided.”
On 12 September 2022 PIC.Assist @iag.com.au responded as follows:
“This email has been received by the CTP personal injury claims department of NRMA and SGIC.
We have been unable to locate a CTP claim relating to this correspondence. To redirect your email to the correct claim, please can you advise of our claim number i.e CTPTP16/ *****/** or NWRTP18****/** or SAATP17***/** or CANTP15/*****/**
Also, the email concerned contains file attachments that are either corrupt or not supported and cannot be uploaded. Please check and resend.
As NRMA and SGIC now us a digital claims system, please return your email to [email protected] with our full claim number in the subject line. This will ensure your email is given further attention.
DCT – Please remove.
Thank you.
CTP Administration Support
On behalf of NRMA and SGIC Insurance
Telephone Number: 132 132
Fax Number: (02) 9088 9696
Email: [email protected].”
On 10 October 2022, the insurer stated it received an Application for personal injury benefits (the Application) dated 7 September 2022 in respect of the accident.
On 11 October 2022, the insurer confirmed receipt of the Application but noted it was non-compliant because a Certificate of Capacity/Certificate of Fitness had not been provided to the insurer. The insurer in the same email, attached a Certificate of Capacity/Certificate of Fitness for completion and return. The insurer advised that form was required as part of the claims lodgement process to enable the insurer to assess and progress the claim.
On 13 October 2022 the insurer emailed the claimant advising the claim remained non-compliant as it was missing the Certificate of Fitness. In response the claimant indicated she would follow up with Dr Tang the following day for anything outstanding.
On 14 October 2022 the insurer again reminded the claimant the claim remained non-compliant because the Certificate of Fitness remained outstanding.
On 17 October 2022 the claimant emailed to the insurer on 17 October 2022 a Certificate of Capacity/Certificate of Fitness dated 17 October 2022.
On 7 November 2022 the insurer issued a Liability Notice – Benefits up to 26 weeks accepting its liability for payment of statutory benefits. The notice also stated:
“As you lodged your application more than 28 days after the accident, you’re entitled to receive income loss payments from the date we received your application which was on 10/10/2022 and your claim became compliant on 20/10/22. We can only make income loss payments to you if we’ve received a certificate of fitness from your doctor to support your incapacity for work, as well as documents confirming your weekly earnings as outlined in our acknowledgement letter.”
Having regard to the provision of s 6.13(2) of the MAI Act the insurer determined there was no entitlement to payment of statutory benefits until 17 October 2022 on the basis the claim form was not compliant until the Certificate of Capacity/Certificate of Fitness was received on 17 October 2022.
TELECONFERENCE ON 20 JANUARY 2023
The dispute was listed for teleconference on 20 January 2023. Ms Rapaport, the solicitor for the insurer was not available. I contacted Ms Ereeny, the CTP claims consultant by telephone. Ms Ereeny informed me Ms Rapaport was on leave until
6 February 2023.I indicated I would adjourn the teleconference to enable Ms Rapaport an opportunity to be present noting this would also give the claimant an opportunity to see whether further evidence could be obtained from Patrick Street Medical Centre.
I informed Mr Chen that s 6.13(2) of the MAI Act was not discretionary and unless I was satisfied the claim form had been submitted within the 28-day period the claimant’s application for statutory benefits from the date of accident would fail.
I suggested he make enquiries with Patrick Street Medical Centre to see if he could obtain a full copy of the email of 12 September 2022 including the attachment. Noting the email was from invoices @ Patrick Medical and an earlier email from [email protected] on 10 September 2022 purported to provide outstanding invoices there is some possibility that the attachment to the
12 September 2022 email comprised invoices and not a claim form.Subsequent to the second teleconference on 7 February 2023 the claimant uploaded to the portal an email from [email protected] to PIC [email protected] dated 12 September 2022 which stated “Please see the attached claim form the above patient”.
Attached to that email is a copy of the Application dated 7 September 2022.
Patrick Street Medical Centre provided a further email dated 24 January 2023. Attached to that email were the following attachments:
· the Application dated 7 September 2022;
· an invoice for professional serves rendered by Dr Danny Tang dated
7 September 2022, and· a Certificate of Fitness signed by Dr Danny Tang dated 7 September 2022.
TELECONFERENCE ON 7 FERUARY 2023
Mr Sean Chen appeared for the claimant and Ms Smadar Rapaport for the insurer during the teleconference on 7 February 2023.
At that time, I indicated the email from Patrick Street Medical Centre suggested the Application had been sent by email to the insurer on 12 September 2022. Assuming the medical certificate was not attached discussion ensued as to whether cl 4.21 of the Guidelines required a claimant to submit a certificate from a treating medical practitioner with the application or as Mr Chen argued provision of a certificate from a treating medical practitioner was simply a compliance requirement having regard to
cl 4.61 of the Guidelines.Mr Chen argued the certificate from a treating medical practitioner provides evidence of fitness for work. He submitted a claimant is required to give notice of a claim addressing the information set out in Table 4.1 above within 28 days of the date of the accident. Thereafter, compliance requires the provision of evidence of fitness for work to ensure the continuation of payments.
Ms Rapaport argued the Application was incomplete if lodged without a certificate from a treating medical practitioner in accordance with cl 4.21 of the Guidelines.
REASONS
I am satisfied the Application contained the relevant information in accordance with Table 4.1 and that the Application was attached to the email from Patrick Street Medical Centre addressed to PIC.Assist @iag.com.au dated 12 September 2022. I am satisfied, notwithstanding the rejection email from the insurer of the same date, that the claimant submitted the Application on 12 September 2022.
However, whilst I have been provided with a copy of a Certificate of Fitness dated
7 September 2022, I am not satisfied that the certificate accompanied the Application. Not only was the Certificate of Fitness not attached to the email of 12 September 2022 but the claimant thereafter took further steps to obtain and provide a Certificate of Fitness to the insurer. Indeed, I find the insurer was not provided with a Certificate of Fitness until 17 October 2022.More difficult is the question of whether notice of claim has been provided in the absence of the Certificate of Fitness or a certificate from a treating medical practitioner.
The modern approach to statutory construction was summarised by Brennan CJ at [69] in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28:
“. . . the process of construction must always begin by examining the context of the provision that is being construed.”
It seems clear that cl 4.21 applies to a claim for statutory benefits for personal injury as opposed to a claim for statutory benefits for funeral expenses.
Clause 4.21 of the Guidelines appears beneath the heading “Notice of statutory benefits claim” and has no obvious relationship to cl 4.61 which appears beneath the heading “Non-compliance with providing evidence of fitness for work”. The latter is designed to regulate the right of the insurer to suspend weekly payments which presupposes payments must have commenced and not the right of the insurer to defer the commencement of weekly payments.
The wording in cl 4.21 is “must also provide” which refers to the obligation to provide something additional and arguably this imposes an obligation to provide a certificate from a treating medical practitioner in addition to the obligation to provide the Application for personal injury benefits as per cl 4.19 and a signed authority as per
cl 4.20 of the Guidelines.I also find the words “must also provide” as they appear in cl 4.21 of the Guidelines means it is a mandatory requirement to provide a certificate from a treating medical practitioner when giving notice of a statutory benefits claim for personal injury.
I find the claimant had not given notice of the claim to the insurer within 28 days after the date of the accident, noting the claim was non-compliant until 17 October 2022 when the claimant provided the insurer with a Certificate of Fitness.
I agree with the current line of authority that there is no room for statutory interpretation of s 6.13(2). Section 6.13(2) makes it clear there is no entitlement to payment of statutory benefits for any period before the claim is made if the claim is not made within 28 days of the date of the motor accident.
Indeed, the intention of the legislature is clear, particularly when compared to the wording of s 6.13(3) which does allow the exercise of a discretion to permit a claim to proceed where the claim was not made within three months after the date of the accident. If the legislature had intended to grant a discretion to extend the time for making the claim to allow payment of statutory benefits from the date of accident it would have said so, in similar terms to the provision found in s 6.13(3).
The MAI Act provides a very clear distinction between statutory benefits under Part 3 and a claim for damages under Part 4. Section 1.4 of the MAI Act defines statutory benefits as benefits payable under Part 3 of the MAI Act whilst damages is defined to mean damages (within the meaning of the Civil Liability Act 2002) in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, but does not include statutory benefits.
Whilst the impact of s 6.13(2) might seem harsh or arbitrary it is clear it is not discretionary. Where a claim for statutory benefits is not made within 28 days after the date of the motor accident a claimant is not entitled to receive weekly payments of statutory benefits for the period before the claim was made.
CONCLUSION
In accordance with s 6.13(2) of the MAI Act the insurer is not required to pay weekly payments of statutory benefits for the period before the claim was made, that is, before 17 October 2022.
COSTS
This application is a regulated miscellaneous claims assessment matter under Schedule 1, cl 3(2)(k) of the Motor Accident Injuries Regulation 2017 and in accordance with Schedule 1, cl 3(1) the maximum costs for legal services provided to a claimant in connection with a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units.
In submissions dated 4 January 2023 the insurer submitted the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 should be nil.
Where the claimant’s argument was not without merit and where Mr Chen participated in two teleconferences it is appropriate to approve the maximum 16 monetary units at $112.53 per unit. The claimant’s costs are assessed in accordance with the Motor Accident Injuries Regulation 2017 at $1,980 inclusive of GST.
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