Reynolds v Allianz Australia Insurance Limited
[2022] NSWPIC 672
•9 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Reynolds v Allianz Australia Insurance Limited [2022] NSWPIC 672 |
| Claimant: | Simon James Reynolds |
| insurer: | Allianz Insurance Australia Limited |
| Member: | Susan McTegg |
| DATE OF DECISION: | 9 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); section 6.13(2) of the 2017 Act; statutory weekly payments; statutory interpretation; no discretion; the claimant was injured in a motorcycle accident on 20 January 2021; claim for statutory benefits made on 10 March 2021; claim not made within 28 days of date of accident; no entitlement to statutory weekly payments before 10 March 2021; claimant asked for discretion to be exercised in his favour; Held – no room for statutory interpretation; no discretion; if claim not made within 28 days of accident no entitlement to weekly statutory payments before claim made; decision of insurer upheld. |
| determinations made: | CERTIFICATE 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 the claim was made, that is, before 10 March 2021. |
REASONS FOR DECISION
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
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 aborist 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 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) In addition, a claim for statutory benefits under Division 3.4 in respect of an injury for which compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the Workers Compensation Act 1987 has been payable may be made within 3 months after the compensation ceases to be payable”.
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 by fax on 10 March 2021. The injuries were described as follows:
"All left side of body + sore and pain present Head/ankle/Achilles heel/knee/elbow/shoulder/Also: Lower back around spine, neck around top of spine. All these body parts hit the tree. Concussion dizziness"
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”.
A Medical Certificate dated 21 April 2021 states:
"Mr Simon Reynolds has a medical condition caused by recent MVA accident injuries. He was claiming third party insurance through alliance and was due to be reviewed within 28 days. Due to difficult personal circumstances including: daughter diagnosed with a chronic medical condition, wife's mother passing away and patient being admitted for PTSD he was not able to follow up. He will require ongoing care for his injuries and still has a number of functional deficits".
Mr Reynolds underwent an MRI of the left knee on 19 May 2021 which disclosed a tear of the lateral meniscus. On 2 June 2021 Mr Reynolds was referred to Dr Stephen Rimmer.
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 requested an extension of the claim period and 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".
On 16 June 2021 Mr Reynolds sent the following email to the insurer:
'Thanks for the feedback, I am feeling very frustrated over this whole process. I have done everything that I've been asked to do by Allianz the doctors and the investigation people at Brooks site. No one at Allianz is returning my calls or emails regarding a specialist Appointment that I have been referred to by my doctor and also no reply regarding possible compensation for my loss of earnings since my accident, I will be contacting the insurance ombudsman regarding all this if I don't get an answer within seven days from today, thanks, Simon".
On 6 July 2021 the insurer issued a Certificate of Determination – Internal Review maintaining the original decision that the claimant’s injuries fell within the definition of “minor injury” in accordance with the MAI Act.
Also, on 6 July 2021 the insurer issued a Certificate of Determination – Internal Review overturning an earlier decision to decline one consult with Dr Stephen Rimmer.
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.
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.
The claimant lodged an application in respect of the Miscellaneous Claims Dispute with the Personal Injury Commission (the Commission) on 23 July 2021 although the application was not referred to me until 19 October 2022. The reason for the delay is unclear.
On 17 December 2021 the insurer issued a Certificate of Determination – Internal Review maintaining the decision that Mr Reynolds is not entitled to weekly payments for the period 20 January 2021 to 9 March 2021 as the claim was lodged outside the 28-day period following the accident. The decision also confirmed Mr Reynolds entitlement to receive weekly payments of statutory benefits from 10 March 2021 where he is reasonably suffering a loss of earnings because of the accident-related injuries for up to two years after the date of the accident.
Insurer’s submissions
The insurer submitted that it was unable to exercise discretion in regard to the late lodgement where s 6.13(2) of the MAI Act does not allow for the exercise of any discretion with regards to late lodgement. The insurer notes that interpretation is supported by previous published decisions including ABD v GIO Insurance [2018] NSWDRS CA30 and ACD v GIO General Limited [2018] NSWDRS CA 056.
TELECONFERENCE ON 17 NOVEMBER 2022.
I conducted a teleconference with Mr Simon Reynolds and Ms Christina Boyadjian on behalf of the insurer on 17 November 2022.
The claimant’s position
Mr Reynolds explained the delay in lodging the claim occurred because of his personal circumstances following the accident. Even though he was coping with the effects of the accident he stated that was the least of his problems at that time. Mr Reynolds stated he was hospitalised with post-traumatic stress disorder arising out of his army service in special operations, his daughter was diagnosed with Type 1 diabetes, his other daughter was ill with a mental health condition and his wife’s mother, who had been in palliative care, died. Furthermore, Mr Reynolds indicated he was not aware of the requirement to lodge the claim within 28 days of the accident to ensure statutory payments were made from the date of accident. He asked that I exercise my discretion and extend the time frame for lodgement of the claim.
Mr Reynolds informed me he no longer disputed the calculation of weekly payments following the review on 21 July 2021 where the insurer adjusted the calculation of his pre-accident weekly earnings from $472.50 to $812.04 on the basis it was calculated on a weekly average of his gross earnings during the 12 months immediately before the accident. Unfortunately, he stated, the year prior to the accident had been a very quiet year for a number of reasons including the impact of COVID-19.
Mr Reynolds stated, notwithstanding his initial difficulty in dealing with the insurer he was “over the moon” with the conduct of the insurer since the decision declining approval for the consultation with Dr Rimmer was overturned. Mr Reynolds’ positive feedback of the insurer shoulder be noted.
I explained to Mr Reynolds that there was no discretion under the legislation for me to extend the time for lodgement of the claim for statutory benefits. In all likelihood I would have been prepared to extend the time frame if the discretion to do so was available to me.
I am satisfied that it is appropriate to determine the matter on the papers.
REASONS
I agree with the current line of authority that there is no room for statutory interpretation. 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 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.
Whilst the impact of s 6.13(2) might seem harsh or arbitrary it is clear it is not discretionary. Where the claim for statutory benefits was not made within 28 days after the date of the motor accident the 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 10 March 2021.
The claimant is not legally represented so there is no order for costs.
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