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ABG v AAI Limited trading as AAMI [2018] NSWDRS MR 033

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsWorkers compensation claim – entitlement to refuse payment of statutory benefits – entitlement to statutory benefits – injuries sustained during course of employment – claim for damages
Legislation cited                    Motor Accidents Injury Act (NSW) ss 3.35, 6.14(1), 7.12(1), 7.13(4), 8.10(1), Schedule 2(1)(s)
Motor Accident Guidelines effective 13 July 2018 cl 7.67.10, 7.70
Motor Accident Injuries Regulation 2017 (NSW)
Workers Compensation Act 1987 (NSW)
Cases cited

N/A

Text citedN/A
Parties ABG - Claimant
AAI Limited trading as AAMI - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

View the certificate

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

The Claim
Claimant ABG
Insurer AAI Limited trading as AAMI
Claim Number Y05428300501
The Reviewable Decision
Reviewable decision-makerNunzio Stasolla
Date of Reviewable decision                                         27 April 2018
Nature of Reviewable decision No statutory benefits if workers compensation pyable
The Merit Review
Our Reference 10045459
Merit Reviewer James Lowe
Date of Merit Review Certificate13 September 2018

Merit Reviewer's Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(s) of the Motor Accident Injuries Act 2017 (the Act).

The merit review matter is about “whether the Insurer is entitled to refuse payment of statutory benefits in accordance with section 3.35 of the Act (No statutory benefits if workers compensation payable)".

The determination of the merit review is as follows:

  • The reviewable decision is affirmed

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

James Lowe
Dispute Resolution Service Merit Reviewer

Reasons for determination

Background

1.  ABG was injured in a motor accident at work on 10 January 2018.

2.  On 27 April 2018, the Insurer wrote to ABG acknowledging his claim for statutory benefits. The Insurer advised ABG that his claim is denied, stating in its reasons:

Confirming within 4 weeks after a claim is made for statutory benefits, we are required to give notice stating whether or not we accept liability for payment of your claim for statutory benefits for the first 26 weeks post-accident. This is per Division 6.4 of the Motor Accident Injuries Act 2017.

As advised, liability has been denied because you have an active workers compensation claim with EML [Employers Mutual Limited] for the same incident and date of injury.

3.  ABG applied for an internal review by the Insurer.

4.  On 23 July 2018, the Insurer gave ABG written notice that it affirmed the decision dated 27 April 2018, again on the basis that ABG is already in receipt of workers compensation benefits in respect of the injury suffered in the subject accident.

5.  ABG lodged an application for merit review with the Dispute Resolution Service on 17 August 2018. The application has been made in accordance with section 7.12(1) of the Act and the Motor Accident Guidelines (the Guidelines).

Documents and Information

6.  I have considered the documents provided in and submitted with the application and the reply and any further information that has been provided to the Dispute Resolution Service and exchanged between the parties.

Submissions

ABG

7.  In the application for merit review, ABG, through his solicitor, submits that he was involved in a motor accident at his workplace on 10 January 2018. It is noted that the Insurer issued a liability notice on 27 April 2018 that was subject to internal review on 23 July 2018.

8.  ABG “consents, pursuant to s 3.35 of [the Act], he is not entitled to statutory benefits if compensation under the Workers Compensation Act 1987 (NSW) (“WCA”) is payable to him”.

9.  ABG submits that:

  • the injuries he sustained as a result of the subject accident are not minor, and
  • the degree of permanent impairment in respect of the injuries he sustained as a result of the subject accident is greater than 10%
o   on 9 August 2018, he sought the Insurer’s concession that the degree of permanent impairment in respect of the injuries he sustained as a result of the subject accident is greater than 10%.

10.  ABG submits that accordingly his entitlements under the Act surpass his entitlements under the Workers Compensation Act 1987 and he reserves his entitlements under the Act.

Insurer

11.  In reply, the Insurer submits that it reiterates and affirms the findings and conclusion that  ABG is not entitled to make a claim for statutory benefits as he is already in receipt of workers compensation benefits in respect to the injuries sustained in the subject motor vehicle accident.

12.  It is submitted that section 3.35 of the Act sets out that an injured person is not entitled to statutory benefits if workers compensation is payable in respect of the injury concerned.

13.  The Insurer submits that there is no dispute with regards to ABG’s entitlement to statutory benefits as ABG conceded that he is not entitled to statutory benefits if compensation under the Workers Compensation Act 1987 is payable to him.

14.  The Insurer submits that ABG’s solicitors should not be entitled to costs of the application, as there is no dispute.

15.  The Insurer refers to section 6.14(1) of the Act. It is said that this section deals with the time for making claims for damages, and a claim for damages cannot be made before the expiration of 20 months, unless the degree of permanent impairment of the injured person is greater than 10%.

16.  The Insurer notes that no decision has been made with regards to ABG’s permanent impairment and it has not been more than 20 months since the subject motor accident. It is submitted that the Dispute Resolution Service has no jurisdiction to hear this matter at this time.

Legislation

17.  In conducting my review, I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (the Act)
  • Motor Accident Guidelines effective 13 July 2018 (the Guidelines)
  • Motor Accident Injuries Regulation 2017 (NSW) (the Regulation)

Reviewable decision(s)

18.  On 23 August 2018 and 11 September 2018, the Dispute Resolution Service wrote to ABG and the Insurer to confirm that the reviewable decision of the Insurer referred for merit review is that there are no statutory benefits if workers compensation is payable.

19.  The parties were directed to Schedule 2 of the Act. It sets out the jurisdiction of the Dispute Resolution Service, and in particular, attention was directed to subclause (1)(s). It provides that whether the Insurer is entitled to refuse payment of statutory benefits in accordance with 3.35 (No statutory benefits if workers compensation payable) is a merit review matter for the purpose of Part 7 of the Act.

20.  ABG and the Insurer were given the opportunity to respond to this information or provide further submissions in regard to the reviewable decision(s).

No statutory benefits if workers compensation payable

21.  ABG was injured in a motor accident at work on 10 January 2018. He details the circumstances of this injury in an application for personal injury benefits (a CTP claim form) dated 21 March 2018, saying:

I was guiding an Apprentice onto the hoist in the workshop and instead of breaking he accidently accelerated. The car went over the stopper and pinned my legs between the car and a toolbox. The force was that great that the dyna bolts securing the metal pole behind the metal toolbox were pulled out of the cement floor.

The Apprentice, once realising what happened reversed the vehicle off me and I fell to the floor. Ambulance and paramedic back up were called due to the injuries sustained and the police also arrived.

I was taken to Wollongong A&E initially, then transferred to Trauma Unit at St George Hospital.

22.  In the application for internal review, dated 5 July 2018, ABG confirmed “I am presently in receipt of workers compensation […]”. The Insurer has also made submissions to this effect and it has noted that ABG has an active workers compensation claim with Employers Mutual Limited for the same incident and date of injury.

23.  I am satisfied on the information before me that workers compensation is payable to ABG in respect of the injury dated 10 January 2018. ABG “consents, pursuant to s 3.35 of [the Act], he is not entitled to statutory benefits if compensation under the Workers Compensation Act 1987 (NSW) (“WCA”) is payable to him”.

24.  ABG is correct. Part 3 of the Act provides for statutory benefits. Division 3.5 under that Part sets out restrictions and limitations on statutory benefits that are payable to an injured person. Under section 3.35 of the Act, there is no statutory benefits if workers compensation payable. Subclause (1) states:

An injured person is not entitled to statutory benefits under this Part if compensation under the Workers Compensation Act 1987 (workers compensation) is payable to the injured person in respect of the injury concerned (or would be payable if the liability for workers compensation had not been commuted).

25.  I have considered ABG’s submissions in the application for merit review. However, there are no exceptions in section 3.35 to allow for an injured person to reserve an entitlement to statutory benefits under Part 3 on the basis that an injury is not minor and greater than 10% or for when entitlements under the Act exceed those under the workers compensation scheme.

26.  The Insurer has applied section 3.35 correctly. ABG is not entitled to statutory benefits under Part 3 as workers compensation is payable to him in respect of the injury concerned. I note the Insurer has expressed that its reviewable decision does not affect ABG’s entitlement to make a claim for damages.

27.  I acknowledge the Insurer’s submissions that ABG’s solicitors should not be entitled to costs of the application, as there is no dispute. The matter as to costs are not before me. However, I note that section 8.10(1) of the Act provides:

A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.

28.  The Insurer also submits that the Dispute Resolution Service has no jurisdiction to hear a claim for damages, at this time. However, ABG’s application for merit review is not about a claim for damages. The merit review matter is about whether the Insurer is entitled to refuse payment of statutory benefits in accordance with section 3.35 of the Act on the basis of no statutory benefits if workers compensation payable.

29.  For reasons expressed above, the reviewable decision of 27 April 2018 is affirmed.

James Lowe
Dispute Resolution Service Merit Reviewer