Serttas v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 65
•20 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Serttas v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 65 |
| Claimant: | Erinc Serttas |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Terence O’Riain |
| DATE OF DECISION: | 20 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; claim lodged 29 days after the accident; schedule 2(3)(k); miscellaneous claims assessment application; section 6.13(2); weekly payments of statutory benefits are only payable in respect of any period before the claim is made if the regulations allow it; no regulations made yet in respect of section 6.13(2) to allow an insurer to pay a claim for accident weekly statutory benefits from the date of an accident, even if the claim arrives after 28 days; Held –insurer has no choice but to refuse to pay weekly statutory for the period between the date of the accident and when the application for personal benefits lodged; no order as to costs because the claimant is self-represented. |
| determinations made: | Certificate The findings of the assessment of this dispute are as follows: 1. For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits 2. Effective Date: This determination takes effect on this date 3. Legal Costs: not costs are awarded |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
Mr Serttas lodged a miscellaneous claims matter application under Schedule 2, clause 3(k) of the Motor Accident Injuries Act 2017 (‘the MAI Act’), which deals with whether an insurer is entitled to refuse payment of weekly payments of statutory benefits, including statutory benefits for a period before a claim is made, following section 6.13[1] (time for making payments of statutory benefits).
[1] 6.13 Time for making of claims for statutory benefitsAdditionally, Clause 4.15 of the Motor Accident Guidelines (‘the Guidelines’) provides that to be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident; a claimant must give notice of the claim to the relevant insurer within 28 days after the date of the accident.
Mr Serttas was injured in a motor vehicle accident on 6 May 2022 [A1].
On 4 June 2022, Mr Serttas lodged an Online Application for Personal Injury Benefits. It was electronically signed and dated on that date [A1].
The State Insurance Regulatory Authority (‘SIRA’) notified the insurer of Mr Serttas’ online claim lodgement on 4 June 2022 [A1]. The insurer entered Mr Serttas’ Online Application for Personal Injury Benefits into its system on the same date.
The insurer issued a Liability Notice – Benefits up to 26 Weeks on 9 June 2022 [A1]. The Liability Notice said the insurer accepted liability for statutory benefits for 26 weeks from the date of the motor accident.
However, the insurer decided that as the Application for Personal Injury Benefits was received more than 28 days after the date of the motor accident, income loss payments would begin from the date the claim form was received, 4 June 2022, and only upon receipt of a certificate of capacity/certificate of fitness supporting an incapacity for work.
On 4 August 2022, the insurer received a completed first certificate of capacity/fitness of the same date [A1], certifying Mr Serttas fit for pre-injury work from 1 June 2022.
Mr Serttas claimed only two weeks lost from a second part-time job after the accident.
10. The insurer issued a Liability Notice – Benefits After 26 Weeks on 26 August 2022 [R2], accepting liability for the payment of statutory benefits after 26 weeks from the date of the motor accident.
11. Mr Serttas requested an internal review by telephone on 10 November 2022 on the insurer’s decision.
12. The insurer conducted the internal review on 21 November 2022 and affirmed the original decision [A2].
13. Mr Serttas later applied to the Personal Injury Commission (the Commission) to decide whether the insurer was entitled to refuse to pay statutory benefits as weekly payments.
Insurer’s submissions
14. Considering the available evidence, the insurer says the following:
a. Mr Serttas lodged his claim more than 28 days after the accident.
b. To be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident, Mr Serttas should have lodged his Application for Personal Injury Benefits (i.e. a claim for statutory benefits) on or by 3 June 2022;
c. The MAI Act and the Guidelines set clear timeframes relating to a claimant’s entitlement to weekly payments of statutory benefits. It is consistent with section 6.13(2) of the Act and Clause 4.15 of the Guidelines–if a statutory benefits claim is not made within 28 days after the date of the motor accident–to refuse payment of weekly payments of statutory benefits for any period before the claim is made.
d. In this situation, the insurer submits there is no discretion to extend the time under the MAI Act.
Reasons
15. On 8 February 2023, the claimant, Erinc Serttas and Ms Panagiotonakos for the insurer, attended a teleconference before me to discuss how this matter would go ahead. I told the parties that I would record the proceedings.
16. Mr Serttas submitted that he had lodged his application in good faith and that he had delayed his application because the insurer recommended that he report the accident to the police before making his claim. This action caused delay, and he had intended to lodge the claim on time. However, he accepted he had made his claim 29 days after the accident, and the legislation had caught his claim.
17. Schedule 2 (3) (k) of the MAI Act, being a miscellaneous claims assessment application, only has work to do in respect of the first and 3rd sub-paragraphs of s6.13. So, the insurer’s discretion to accept or refuse a claim only refers to those subsections.
18. Suppose a claim for statutory benefits is not made within 28 days of the motor accident. In that case, the legislation says weekly payments of statutory benefits are only payable in respect of any period before the claim is made if the regulations allow it.
19. This state of affairs can only change once regulations are made in respect of section 6.13(2), which could allow an insurer to pay a claim for accident weekly statutory benefits from the date of an accident, even if the claim arrives after 28 days.
20. It is clear the insurer has no choice but to refuse to pay weekly statutory for the period between the date of the accident and when the application for personal benefits was lodged with SIRA.
21. I told Mr Serttas the insurer's submissions were correct, and this application could not succeed.
22. I make no order as to costs because the claimant is self-represented.
Legislation
23. In making my decision I have considered the following legislation and guidelines:
Motor Accidents Injuries Act 2017 (MAI Act)
Motor Accident Guidelines
(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, unless permitted by the regulations.
(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.
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