Zandy v Allianz Australia Insurance Limited
[2025] NSWPICMR 14
•15 April 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Zandy v Allianz Australia Insurance Limited [2025] NSWPICMR 14 |
CLAIMANT: | Dillan Zandy |
INSURER: | Allianz Australia Insurance Limited |
MERIT REVIEWER: | Hugh Macken |
DATE OF DECISION: | 15 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; statutory benefits payable; refusal of statutory benefits on grounds that workers compensation claim is to be made; insurer assertion that claimant was a worker at the time of accident; onus of proof; failure to comply with request by insurer to make a claim for workers compensation; reasonable grounds to consider that workers compensation is or may be payable; lack of documentation; claimant was performing self-employed work; relevance of bank records; Held – statutory benefits defence of section 3.35 must fail; claimant has no entitlement to workers compensation; internal review overturned; regulated costs allowed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 1. The reviewable decision about whether the insurer is entitled to refuse payment of statutory benefits in accordance with s 3.35 (no statutory benefits is workers compensation payable) of the Motor Accident Injuries Act 2017 (the MAI Act) and is therefore a Merit Review matter under Schedule 2(1)(s) of the MAI Act. 2. The reviewable decision is overturned. 3. The claimant is entitled to legal costs up to the statutory maximum of 16 monetary units for reasonable and necessary legal costs incurred in connection with this merit review pursuant to s 8.10(3) of the MAI Act and Schedule 1, cl 1 of the Motor Accident Injuries Regulation 2017 (the Regulation) in the sum of $2,191.73 inclusive of GST. 4. The claimant is entitled to statutory benefits. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Dillan Zandy (the claimant) and the insurer as to whether the insurer is entitled to statutory benefits in accordance with s 3.35 of the Motor Accident Injuries Act 2017 (MAI Act) where workers compensation may be payable.
The claimant was involved in a motor vehicle accident on 9 March 2024. Thereafter the claimant lodged an Application for Personal Injury Benefits. On 24 April 2024 the insurer wrote to the claimant advising the claimant to lodge a workers compensation claim. Thereafter, on 16 April 2024 the insurer states that during the course of a phone call on 16 April 2024 the claimant was asked if he was working as a driving instructor at the time of the accident and he advised yes. On 23 April 2024 the insurer states the claimant advised over the phone that he had not lodged a workers compensation claim. Thereafter on 24 April 2024 the insurer wrote to the claimant advising that they were unable to accept the claim as circumstances of the accident entitled you (the claimant) to workers compensation benefits.
The claimant sought a review of this determination and in a certificate of determination – internal review dated 2 July 2024 the insurer advised that the decision to refuse payment of statutory benefits on the grounds that workers compensation payable is affirmed. The insurer’s internal review stated that given a telephone call with the insurer’s case manager the claimant advised that the accident occurred in the course of his employment as a driving instructor. They acknowledge that the claimant advised them that he contacted icare for the purpose of lodging a claim but was unable to do so. They further asserted that the claimant explained that while he and his wife own a business his wife is formally the owner and the business is under her name. That is, it is the insurer’s assertion that the claimant advised at the time of the accident he was working in his capacity as a driving instructor for R & D Driving School.
Legislation
Section 3.35 of the MAI Act provides no statutory benefits of workers compensation payable:
(a) an injured person is not entitled to statutory benefits under this part in compensation under the Workers Compensation Act 1987, and
(b) workers compensation is payable to the injured person in respect to the injury concerned; relevantly, that the insurer is not entitled to refuse payment for statutory benefits in respect to the injuries unless (be the insured person has failed to comply with the request by the relevant insurer under this section to make a claim for workers compensation in respect to the injury.
Section 3.35(4) states:
(a) if the relevant insurer for a claim for statutory benefits under this part considers on reasonable grounds whether the workers compensation is or may be payable in respect to the injury concerned the insurer may require the injured person to make a claim for workers compensation.
The issue in contention between the parties is whether there are reasonable grounds for the insurer to consider whether the workers compensation is or may be payable in respect to the subject injury.
In the ordinary course of events the claimant, being a person injured in a motor vehicle accident, has an entitlement to statutory benefits under the MAI Act.
Section 3.35 states:
(a) removes the entitlement to statutory benefits, compensation under the Workers Compensation Act 1987 is payable to the injured person.
Section 3.35(2) states the relevant insurer for a claim for statutory benefits under this part is not entitled to refuse statutory benefits in respect to the injury unless the injured person has failed to comply with the request by the relevant insurer under this section to make a claim for workers compensation in respect to the injury. This can only be done if the insurer considers on reasonable grounds that workers compensation is or may be payable in respect to the injury concerned.
It is clear from the legislation that the onus is on the insurer to establish that there are reasonable grounds to consider that workers compensation is or may be payable in respect to the injury.
In this regard, the insurer’s submissions seem to impose some double standards. In considering that there were reasonable grounds to consider that workers compensation is or may be payable, in circumstances where the claimant denies this, they seemingly relied upon submissions and concessions allegedly made during telephone calls whilst not accepting the claimant’s version of conversations with icare as no notes or records of that conversation were provided to the insurer.
Their internal review certificate of determination notes that (on 16 April 2024 during a telephone call with your case manager, Miss Veronica Lewis, you advised the accident occurred in the course of your employment as a driving instructor).
There is no file note to this effect. There is no transcript or recording to this effect.
Whilst they are happy to accept the contents of a telephone conversation in respect to a concession they go on to say, the claimant having advised them they had contacted icare for the purposes of lodging a claim but were unable to do so due to a lack of a policy that “I note that we are not in possession of any documentation from icare which confirms that a claim for workers compensation was lodged and subsequently declined”.
No documentation exists because the claimant did not assert that he did this.
Where the claimant contends that no workers compensation rights exist they submit that “there is no evidence to corroborate the claimant’s assertion that he unsuccessfully attempted to make a workers compensation claim.” They further submit that the claimant has not disproven his rights to workers compensation to make a claim for workers compensation as “the insurer submits the claimant could have provided a call history log and the name of the person he spoke to in an effort to verify his claim.”
It is the insurer that bears the onus to establish on reasonable grounds that workers compensation is or may be payable. The insurer does not advance this through assertions that the lack of documentary material from the claimant somehow disproving that workers compensation policy was in effect. This is not sufficient to give rise to “reasonable grounds” that a workers compensation policy was in effect and insured the claimant in the circumstances of this motor vehicle accident.
The particulars provided by the claimant, do not bear out that he was a worker and covered by employer’s workers compensation policy.
Whilst the insurer submits that the claimant had confirmed that he was working for R & D Driving School at the moment of the subject accident occurred is simply not borne out by the particulars themselves. What the claimant says is “our client was working as a driving instructor for R & D Driving School at the time of the subject accident”. The insurer’s submission submits that the particulars state that he was working for R & D Driving School at the moment of the subject accident. This is not what the particulars say. They go on to state that he was working in his capacity as a sole trader driving instructor at the time of the accident, he was performing self-employed work under his own ABN number, when the subject accident occurred and that the text messages between the claimant and the student learner driver confirmed that this was in conjunction with his work as a sole trader.
The material suggests numerous possible scenarios seemingly based on bank statements not showing payments directly to the claimant from a student driver although the claimant relies on bank records seemingly showing payments directly to the claimant from other student drivers.
The insurer contends the claimant could have done more to confirm that he was not employed and that he was working as a sole trader at the time of the accident. The claimant has submitted that the insurer could have made further enquiries to satisfy themselves that no workers compensation policy existed which would cover the claimant for the injuries that he sustained in the motor vehicle accident.
Whilst it is somewhat relevant the records do not provide particular assistance to the insurer that the insurer could consider, on reasonable grounds, that compensation may be payable. Where the claimant, has denied that compensation payments are payable, and the insurer cannot establish on the documentation that the claimant is covered by a workers compensation policy, it seems to me reasonable to determine that the defence to the claim for statutory benefits pursuant to s 3.35 must fail.
In these circumstances the claimant has denied that he has an entitlement to workers compensation. He has informed the insurer that he contacted icare and that they advised him that absent any workers compensation policy to make a claim under he has no entitlements to make such a claim. The denial of this claim was made seemingly on the basis on conversations with the claimant. In particular the insurer submitted that the notice reference telephone conversation with the claimant including one on 23 April 2024 in which the claimant stated that he had not yet lodged a workers compensation claim. There is no material as to what other conversations were had. There is nothing in the material in respect to transcripts or recordings or detailed notes of conversations that the claimant had with the insurer. The claimant states that he made enquiries in respect to bringing a workers compensation claim and was advised he has no entitlement to make a claim and that is, he has no entitlement to make a claim and accordingly he did not do so. This cannot be reasonably inferred to be a concession by the claimant that he has an entitlement to make a claim and will do so!
The insurer goes on to submit in the conversation on 23 June 2023 during which the claimant he said he contacted icare to lodge a claim but was unable to do so. This is correct. The claimant doesn’t have rights under the Workers Compensation Act 1987.
Submissions
The claimant submits that the insurer does not have reasonable grounds to believe that workers compensation may be payable. The claimant provided details in respect to his performing work as a sole trader at the time he sustained his injury. As a sole trader the claimant contends that there is no policy covering him for his injuries sustained in the course of his employment. Accordingly, workers compensation is not payable.
The insurer submits the claimant has not produced any objective documentary evidence to confirm that he was working as sole trader nor that there is any evidence to corroborate the claimant’s assertion that he unsuccessfully attempted to make a workers compensation claim.
The claimant was working as a sole trader at the time of the accident and accordingly cannot make a claim for workers compensation as there was no policy which covered him for injuries whilst giving driving instruction as a sole trader and not as an employee or worker.
It follows then that the certificate of determination – internal review dated 2 July 2024 is overturned.
COSTS
Pursuant to Schedule 1, cl 2(b) of the Regulation his is a regulated merit review matter. Accordingly, pursuant to s 8.10(3) of the MAI Act and Schedule 1, cl 1 of the Regulation, the claimant is entitled to legal costs incurred in connection with this merit review to the extent such costs are reasonable necessary, up to a maximum of 16 monetary units.
I note the claimant submitted the relevant amount claimed $1,992.48 plus GST giving rise to a total $2,191.73 regulated costs.
There have been no submissions from the insurer which contradict the calculations for regulator costs submitted by the claimant. As the claimant’s application has been determined in his favour it follows that regulated costs ought to be allowed.
CONCLUSION
The insurer is not entitled to refuse payment of statutory benefits. Accordingly, the reviewable decision is overturned.
The claimant is entitled to regulated legal costs in the sum of $2,191.73.
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