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ABD v GIO Insurance [2018] NSWDRS CA 030

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsTime limits – time for making statutory benefits claim – pre-paid post – date claim form received by Insurer – claim not in 28 days
Legislation citedMotor Accidents Injury Act (NSW) ss 6.13, 6.13(2), 7.36(4), Schedule 2(3)(k)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.445
Cases cited

N/A

Text citedN/A
Parties ABD - Claimant
GIO Insurance - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantABD
InsurerGIO Insurance
Date of Accident26 May 2018
DRS Reference10041387
Insurer Claim NumberY056947008-01
Date of Internal Review26 July 2018
DRS Claims Assessor David R Ford
Date of Decision3 October 2019

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 3 October 2018.

3.     Legal Costs:  Not applicable.

A brief statement of my reasons for this determination are attached to this certificate.

David R Ford
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Services

Reasons for decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)[K] of the Motor Accident Injuries Act 2017, about whether the Insurer is entitled to refuse payments of weekly payments of statutory benefits in accordance with Section 6.13 (time of making of claim for statutory benefits).

1.The section of the Act which us under dispute is Section 6.13 (2).  This section states as follows:-

6.13   Time for making of claims for statutory benefits.

Subsection 2   If a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments for statutory benefits are not payable in respect of any period before the claim is made.

2.   The Applicant has lodged an application form with the Dispute Resolution Service and annexed to the form copies of the application for personal injury benefits dated 29 May 2018, together with various medical certificates and clinical notes, together with a certificate of capacity dated 29 May 2018.  Also annexed to the application is the statement of reasons/internal review of the Insurer dated 26 July 2018.  The Applicant states he posted the application for personal injury benefits claim form to the Insurer on 18 June 2018, however, the said application was not received by the Insurer until 4 July 2018.

3.   The issue which is in dispute between the parties is the fact Section 6.13 (2) clearly states that weekly payments for statutory benefits are not payable in respect of any period before the claim is made.  The Claimant is seeking payment of the loss of one-week wages.  The amount claimed is the sum of $1,914.50.  The Claimant states that the length of time off work due to the accident was from the period 28 May 2018 until 1 June 2018.  However, because of the provisions of Section 6.13 (2) of the Motor Accidents Injuries Act, the claim form should have been lodged with the Insurer on or before 25 June 2018 to enable the Claimant to be paid the said weekly payment.

4.   The Insurer undertook an internal review and a statement of reasons is attached to the application form.

Documents considered

5.I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions

6.   The Claimant submitted during the teleconference that he posted the application for personal injuries benefits by ordinary pre-paid post on 18 June 2018.  The Claimant cannot provide an explanation as to why the said application was not received by the Insurer until 4 July 2018.  The Claimant did not communicate with the Insurer between the period 18 June 2018 and 4 July 2018.

7.   The Insurer again stated the application for personal injuries benefits was not received by them until 4 July 2018.  The Insurer does not have a procedure where the said application is date stamped nor do they retain the pre-paid post envelope in which the said application was contained.

Legislation

8.  In making my decision/conducting my review I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Reasons

9.    I have considered the documents provided in the application and the reply and any further information provided by the parties.

10.  The Applicant stated he posted the Application for Personal Injury Benefits Claim Form to the Insurer by pre-paid post on 18 June 2018.  However, I accept the said Application was not received by the Insurer until 4 July 2018.

11.  I stated to the Claimant at the teleconference on 18 September 2018, with hindsight, it would have been preferable if the Application was forwarded by registered post.  Registered post would have provided me with confirmation that the Application was posted to the Insurer on 29 May 2018.  In such circumstances, this may have provided me with sufficient proof the Applicant had complied with the Provisions of Section 6.13 (2) of the Motor Accidents Injuries Act.

12.  During the teleconference, the Claim made the comment, that it would have been preferable that on the first page of the Application for Personal Injury Benefits the wording of Section 6.13 (2) should be clearly stated and in addition, it should also be stated that it is recommended the Claimant forward the Application to the CTP Insurer by pre-paid registered post.

13.  I advised the parties at the teleconference the wording of Section 6.13 (2) is clear and unequivocal.  The information before me has led to the conclusion that in this instance the Application was not received by the Insurer until 4 July 2018, and accordingly, the claim for statutory benefits was not made within 28 days after the date of the motor accident.

14.  Accordingly, I determine for the purposes of Section 6.13, the Insurer is entitled to refuse payment of weekly payments of statutory benefits.

Costs and disbursements

15.  The Claimant was unsuccessful in his Application and furthermore, was self-represented and I am satisfied that the Claimant is not entitled to payment of legal costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

16.  For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits

17.  Effective Date: This determination takes effect on 3 October 2018.

David R Ford
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Service