Reynolds v Allianz Australia Insurance Limited
[2023] NSWPICMR 8
•16 February 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Reynolds v Allianz Australia Insurance Limited [2023] NSWPICMR 8 |
| ClaimanT: | Simon Reynolds |
| Insurer: | Allianz Insurance Australia Limited |
| Merit Reviewer: | Susan McTegg |
| DATE OF DECISION: | 16 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; the claimant was injured in a motor vehicle accident on 20 January 2021; no pending claim for damages; whether claimant entitled to extension of weekly statutory payments more than 104 weeks after date of motor accident; section 3.12(2)(a); Held – no discretion to extend weekly statutory payments past 104 weeks after the date of accident where no pending claim for damages; the reviewable decision is affirmed. |
| Determinations made: | CERTIFICATE OF DETERMINATION The findings of the assessment of this dispute are as follows: 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
Simon Reynolds (the claimant) sustained injury in a motorcycle accident on 20 January 2021 (the accident).
At the time of the accident the Mr Reynolds was self-employed undertaking high risk work in the security, rope access and arborist industries operating under the business name Battle Fit.
Allianz Australia Insurance Limited is the insurer liable to pay statutory benefits under the Motor Accident Injuries Act, 2017 (MAI Act).
This determination relates to a merit review matter which is a reviewable decision under Schedule 2(1)(b) of the MAI Act about whether for the purposes of s 3.12 of the MAI Act the insurer is entitled to cease weekly payments after 104 weeks after the accident where the claimant’s injury is not the subject of a claim for damages.
RELEVANT LEGISLATION
Section 3.12 of the MAI Act is in the following terms:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than the maximum weekly payment period after the motor accident concerned.
(2) The maximum weekly payment period is as follows—
(a)104 weeks, unless the person’s injury is the subject of a pending claim for damages (whether or not the insurer has accepted liability),
(b)156 weeks if the person’s injury is the subject of such a pending claim and the degree of any permanent impairment of the injured person as a result of the injury is not greater than 10%,
(c)260 weeks if the person’s injury is the subject of such a pending claim and the degree of permanent impairment of the injured person as a result of the injury is greater than 10%.
(3) The maximum weekly payment period ends if any such pending claim for damages is withdrawn, settled or finally determined after the period of 104 weeks after the motor accident concerned.”
THE EVIDENCE
I have considered the documents provided in the application and the reply and any further information provided by the parties.
The claimant lodged an Application for Personal Injury Benefits with the insurer on 10 March 2021. The accident was described as follows:
"Driving at 80kmph and a deer ran into road. I swerved to miss it and went through bushes and trees then hit a tree at 30kmphr approx. and stopped. My head and body also hit the tree on my left side”.
The certificate of capacity/certificate of fitness dated 22 January 2021 noted a diagnosis of "LBP, L Achilles tendinitis, L tennis elbow, L knee patella”.
Mr Reynolds underwent an MRI of the left knee on 19 May 2021 which disclosed a tear of the lateral meniscus. Mr Reynolds was referred to Dr Stephen Rimmer, orthopaedic surgeon.
On 4 June 2021 the insurer issued a Liability Notice – benefits after 26 weeks in which Mr Reynolds was advised the insurer did not accept liability for payment of statutory benefits beyond 26 weeks from the date of accident on the basis the injury sustained fell within the definition of minor injury under the MAI Act.
On 15 June 2021 Mr Reynolds disputed the liability notice dated 4 June 2021. Mr Reynolds stated:
“My knee is still damaged, swollen and needs further medical care. The damage was caused by the accident. I have also not been told if I can see a knee specialist after 2 weeks of asking".
Dr Stephen Rimmer provided a report dated 19 July 2021 in which he confirmed that the claimant has sustained a re-tear of the lateral meniscal remnant of the left knee as a result of the accident.
The insurer accepted that a re-tear of the lateral meniscal remnant of the left knee was not a minor injury and on 11 August 2021 the insurer issued a Liability Notice-benefits after 26 weeks confirming acceptance of liability for payment of statutory benefits beyond 26 weeks from the date of accident.
On 14 October 2022 the insurer sent the following letter to Mr Reynolds:
“Your claim has been accepted for weekly payment of statutory benefits for your motor vehicle accident occurring on 20 January 2021. Under Section 3.12 of the Motor Accident Injuries Act 2017, weekly benefits are payable for a maximum period of 104 weeks following the accident date, unless a claim for damages has been made. However, you have no entitlement to common law as you were involved in a no-fault motor accident, which means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person. Accordingly, we accept you were not wholly or mostly at fault in the motor vehicle accident.
Section 5.2 of The Act deems that the owner or driver of the motor vehicle in the use or operation of the vehicle is at fault in a no-fault motor accident. You therefore do not have an entitlement to recovery of Common Law damages regarding compensation for non-economic loss or past and future economic loss as per section 5.4 of the Act.
Your entitlement to weekly payments will cease on 18 January 2023. I provide this notice pursuant to the requirements of Section 3.19 of the Act, providing 8- week notice before the cessation of your payments will take effect.
Please note that your access to reasonable and necessary medical treatment and care remains unchanged.”Mr Reynolds sought an internal review on 13 December 2022 stating:
“I was told I can ask for a review to get an extension to my claim cover period.
I am doing my exercises at home and have started slow jogging but it’s not going well due to pain.
My surgeon has told me to discontinue physiotherapy and just concentrate on the exercises and jogging/walking/exercise bike”.In an email dated 14 December 2022 Mr Reynolds stated:
“… I am just concerned that my knee will not be fully recovered by the 18th Jan due to the very slow start with this claim cover initially. I had approx. 6 months delays due to Allianz not accepting my claim. I also missed out on cover for treatment during that period.
I have tried to start jogging again but it causes pain so as a contingency I would like to have continuing cover if possible.
Please bear this in mind when you conduct your review”.On 23 December 2022 the insurer issued a Certificate of Determination – Internal Review maintaining the decision that weekly statutory payments would cease at 104 weeks after the motor vehicle accident on the basis that Mr Reynold’s claim was not subject to a pending damages claim in accordance with s 3.12(2)(a) of the MAI Act.
The claimant lodged an application in respect of the merit review matter with the Personal Injury Commission (the Commission) on 11 January 2023. The merit review matter was referred to me for determination.
CLAIMANT’S SUBMISSIONS
In an email addressed to MA Dispute Resolution dated 9 January 2023 Mr Reynolds stated that the insurer initially denied liability for his injury and that the delay of six months or so caused his recovery to take longer due to the delay in being able to access treatment and rehabilitation services. Mr Reynolds states he still has pain in his knee and cannot readily run on it which is a significant factor in his recovery due to the nature of his work in the high risk/safety/security/training/assessment industry.
INSURER’S SUBMISSIONS
The insurer submits that where an application for damages under common law has not been lodged the maximum period for payment of weekly payments is 104 weeks after the date of the accident in accordance with s 3.12(2)(a) of the MAI Act.
TELECONFERENCE ON 13 FEBRURY 2023
I conducted a teleconference with Mr Simon Reynolds and Ms Uma Ramrakha on behalf of the insurer on 13 February 2023.
Mr Reynolds argued that the period during which he was entitled to receive weekly payments should be extended where the initial delay in accepting liability meant there was a delay in commencing treatment causing his recovery to take longer than it otherwise would have.
Notwithstanding the current dispute with the insurer Mr Reynolds said the conduct of the insurer over the last 18 months had been awesome. The positive feedback of the insurer should be noted.
I explained to Mr Reynolds that there was no discretion under the legislation for me to extend the period of time in which he was entitled to receive weekly payments where there was no pending claim for damages.
I am satisfied that it is appropriate to determine the matter on the papers.
REASONS
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.”
Section 3.12 is found in Part 3 of the MAI Act pertaining to statutory benefits. Division 3.1 is titled “Entitlement to statutory benefits”. Section 3.1 provides an entitlement to statutory benefits in respect of death or injury to a person from a motor accident in this State, except as otherwise provided, whether or not the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle or even if the accident was caused by the fault of the person to whom the statutory benefits are payable.
Division 3.3 is titled “Weekly payments of statutory benefits to injured persons”. Section 3.6 provides for weekly payments during the first entitlement period (first 13 weeks after motor accident), s 3.7 provides for weekly payments during the second entitlement period (weeks 14 to 78 after motor accident) and s 3.8 provides for weekly payments after the second entitlement period (after week 78).
Section 3.9 stipulates the maximum weekly statutory benefits payable and s 3.10 the minimum weekly statutory benefits amount.
Section 3.11 of the MAI Act relates to the cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks whilst s 3.12 otherwise provides for the cessation of weekly payments at 104 weeks after the motor accident unless there is a pending claim for damages or 156 weeks if there is a pending claim for damages or 260 weeks if there is a pending claim for damages and the degree of permanent impairment of the injured person as a result of the injury is greater than 10%.
There can be no doubt that Division 3.3 of the MAI Act is designed to provide the basis on which there is an entitlement to weekly payments of statutory benefits and s 3.12 determines the boundaries of that entitlement. Payment of statutory benefits is designed to achieve the objects of the MAI Act as set out in s 1.3 in particular:
(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities, and
(b) to provide early and ongoing financial support for persons injured in motor accidents.
Whilst I am not unsympathetic to the argument advanced by Mr Reynolds that the failure of the insurer to acknowledge that the re-tear of the lateral meniscal remnant of the left knee was caused by the accident and to accept the injury as a non-minor injury caused a delay in treatment, the intention of the legislature is clear. Section 3.12(2)(a) does not confer a discretion to extend the time for weekly payments.
The introduction of a right to statutory payments under the MAI Act, regardless of fault for a person who sustains injury in a motor accident in this State does provide benefits and support, namely, statutory benefits, which was not available to injured persons under the preceding legislation the Motor Accident Compensation Act, 1999 where there was no right to statutory benefits only a right to recover damages which, apart from the blameless accident provisions, was dependent on demonstrating fault by a third party in the use or operation of a motor vehicle.
The MAI Act provides a very clear distinction between statutory benefits under Part 3 and an award of 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.
However, the right to statutory payments under Part 3 is not unlimited and ss 3.11 and 3.12 of the MAI Act operate to set the limits of that entitlement by designating when and in what circumstances the entitlement to weekly statutory benefits cease.
Indeed, the intention of the legislature is clear, particularly when compared to other provisions of the MAI Act. If the legislature had intended to grant a discretion to extend the time for payment of weekly statutory benefits it would have said so but it is clear where there is no pending claim for damages there is no entitlement to ongoing weekly payments past 104 weeks after the motor accident.
CONCLUSION
In accordance with s 3.12(2)(a) of the MAI Act the insurer is not required to pay weekly payments of statutory benefits after 104 weeks from the date of the motor accident.
In accordance with s 7.13(3) of the MAI Act I affirm the reviewable decision.
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