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ABH v Allianz Insurance Ltd [2018] NSWDRS CA 034

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsReasonable excuse for non-compliance – failure to attend medical appointment – Insurer not entitled to refuse benefits
Legislation CitedMotor Accidents Injury Act (NSW) ss 6.27, 7.36(4), 7.36(5), Schedule 2(3)
Cases CitedN/A
Text CitedN/A
Parties ABH - Claimant
Allianz Insurace Ltd - 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 section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines

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

ClaimantABH
InsurerAllianz Australia Insurance Limited
Date of Accident21 March 2018
DRS Reference10045700
Insurance Claim Number75C000318
Date of Internal Review14 August 2018
DRS Decision MakerHelen K. Wall
Date of Decision19 November 2018
Conference date and timeDetermined on the papers

The findings of the assessment of this dispute are as follows:

  1. For the purposes of section 6.27 of the Motor Accidents Injuries Act 2017, the Claimant has provided a reasonable excuse for non-compliance with his duty to attend the appointment with Dr Gehr, on 18 July 2018.
  2. For the purposes of section 6.27, the Insurer is not entitled to refuse payment of weekly payments of statutory benefits from 18 July 2018 to 8 August 2018.
  3. Effective Date: This determination takes effect on 19 November 2018.
  4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus GST.

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

Helen K. Wall
DRS Decision Maker

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) of the Motor Accident Injuries Act 2017, about whether the Insurer is entitled to refuse payment of weekly payments of statutory benefits in accordance with s.6.27 of the Motor Accidents Injuries Act 2017.

1. There is a dispute between the Claimant, ABH and the Insurer, Allianz Australia Insurance Limited in respect of the Insurer’s cessation of weekly statutory benefits for the period 18 July 2018 to 8 August 2018 owing to the Claimant’s failure to attend a medical appointment with Dr Eugene Gehr on 18 July 2018 at Parramatta. This appointment was organised by the Insurer.

2. The Claimant sustained injuries in a motor vehicle accident on 21 March 2018. As part of his rehabilitation and medical examinations, the Insurer arranged the above appointment with Dr Gehr.

3. The Claimant provided submissions (A5) signed by his legal representative, setting out the reasons for the Claimant’s non-attendance on Dr Gehr. The reasons are summarised below.

a. The Claimant was diagnosed by Dr Eric Lim as suffering with post-traumatic stress disorder and previously acute stress disorder.

b. The Claimant alleges that these injuries were sufficient to affect his ability to keep track of time and dates and cause him to miss an appointment.
c.  The Claimant alleged that his daughter was ill on the day of the appointment, he is a single parent with a minor in his care and his partner suffered post-natal depression.

4. The Claimant refers to s.6.27(1)(A) of the Act, and notes that the Claimant’s failure to attend is a reasonable excuse as defined in the Act.

5. The Insurer submitted that it had sent an email to the Claimant reminding him of the appointment, and had also sent him a text message. The text message was allegedly sent to the Claimant on 16 July 2018 and the email on 4 July 2018 reminding the Claimant of his appointment.

6. I had not obtained a signed statement from the Claimant, and on my directions following the first telephone conference, I received a statement from the Claimant, signed but undated and provided to me on 15 November 2018. The Claimant in that statement noted as follows at paragraph 5:

“There was confusion on my behalf regarding all the medical appointments being arranged by my treating doctor and those arranged by Allianz, not to mention medical case conferences with Allianz and my treating doctors present.”

7. At paragraph 6:

“During the period between 21 March 2018 and 18 July 2018, I attended more medical appointments in that four month period than in most of my life.”

8. At paragraph 7:

“I confirm on 17 July 2018, I attended a medical case conference with my treating doctors and the Insurer and believed that this was the appointment I was required to attend. I know now this be in error as the appointment with Dr Gehr was the very next day.”

9. The Claimant also stated at paragraph 10:

“I also advised the Insurer that my daughter was ill on that day and as her health comes first, and I would miss the appointment as I was required to care for my newborn child.”

10.  At paragraph 13:

“In addition, I have been diagnosed with PTSD and previously acute stress disorder. I found the entire claims process stressing and depressing and I have received no support from Allianz who appear to want to do everything to deny and close my claim as quickly as possible contrary to medical opinion…”

11.  At paragraph 16:

“The reasons above are why I failed to attend the appointment, but it was not due to reluctance to attend, merely human error.”

12.  The Claimant’s solicitor later confirmed that the Claimant alleges that he never received the text from the Insurer of 16 July 2018.

13.  The Insurer submits the Claimant’s explanation for non-attendance is not reasonable.

14.  Allianz sent the Claimant a letter dated 23 July 2018 advising him of suspension of his weekly benefits and setting out the reasons therefore.

15.  An internal review certificate of determination was issued on 14 August 2018 and affirmed the original decision.

16.  I note that the Claimant did attend a subsequent appointment with Dr Gehr and the Insurer’s representative noted that a report has been provided.

17.  In reply to the Claimant’s statement, the Insurer on 15 November 2018 served on the Claimant and provide me with reports of surveillance evidence on the Claimant, a report of Dr Cipriani and further submissions.

18.  The Insurer indicated that the reliance placed on this surveillance and the report of Dr Cipriani goes to the Claimant’s credit as the surveillance shows the Claimant performing activities that he has not disclosed to the doctors. The Insurer disputes the Claimant’s allegation that he is suffering from PTSD based on the report of Dr Cipriani dated 10 September 2018 in which he states:

“That the Claimant is grossly exaggerating pain complaints, physical disability, cognitive problems and the emotional impact of the accident to enhance his claim.”

19.  I note that this report is dated 10 September 2018, two months after the Claimant failed to attend the appointment with Dr Gehr.

20.  I have read the surveillance report and viewed the photographic evidence. This surveillance on 25 August 2018 and was conducted over 11 separate days. I note that this surveillance commenced approximately a month after the Claimant failed to attend the appointment with Dr Gehr.

21.  I have read the emails supplied by the Insurer from the Claimant, and in particular dated 20, 23 and 24 July 2018 explaining his non-attendance. I note in particular an email of 23 July 2018 as follows:

“Try dealing with a sick child on the day of the appointment… Have you got any understanding of that?

Wake up andi… my child’s health is way more important… This is blackmail directly from Andy Gilmore… I’m not dumb. I know my rights I been speaking to a lawyer… You personally are being unreasonable, unprofessional and blackmailing.”

22.  A medical certificate from the treating doctor in relation to the Claimant dated 14 May 2018 noted a management plan as follows:

“Modified activities, physical therapy, pain management.

Referrals – physiotherapy and counselling PRN.

Factors affecting recovery – severe pain.”

23.  The Claimant was certified totally unfit for work from 14 May 2018 to 4 June 2018.

24.  A report from Dr Sebastian Rubio dated 7 May 2018 (A3) diagnosed the Claimant as suffering the following injuries:

a. Neck
b. Back
c. Psych.

Summary

25.  The Claimant’s explanation for not attending the appointment with Dr Gehr on 18 July 2018 was on the basis that he had a sick child, his partner suffered post-natal depression and he was trying to cope with that. He had had a number of medical appointments and got confused as to who he was to see on the date in question.

26.  In relation to the Insurer’s submissions on the surveillance evidence and the report of Dr Cipriani, I note that these post-date the date that the Claimant failed to attend at the appointment.

My Findings

27.  On all of the evidence, I am satisfied that the Claimant has provided a reasonable excuse for non-compliance to attend the medical appointment by Dr Eugene Gehr on 18 July 2018.

Costs and Disbursements

28.  The Claimant claims costs if successful, the Insurer agrees with that. I allow costs at $1,633.00 plus GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

29.  For the purposes of section 6.27 of the Motor Accidents Injuries Act 2017, the Claimant has provided a reasonable excuse for non-compliance with his duty to attend the appointment with Dr Gehr.

30.  For the purposes of section 6.27, the Insurer is not entitled to refuse payment of weekly payments of statutory benefits from 18 July 2018 to 8 August 2018.

31.  Effective Date: This determination takes effect on 19 November 2018.

32.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus GST.

Helen K. Wall
Decision Maker,
Dispute Resolution Service
19 November 2018