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ABT v NRMA Insurance Pty Ltd [2018] NSWDRS MR 046

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsWorkers compensation claim – no statutory benefits payable –  entitlement to statutory benefits – injuries sustained during course of employment – carpenter
Legislation cited                    Motor Accidents Injury Act (NSW) s 3.19, 3.19(1), 3.19(7), 3.35, 3.35(2)(b), 3.35(4), 7.13(4)
Motor Accident Guidelines effective 13 July 2018 s 4.41, 4.59, 4.60, 4.61, 7.12(1)
Motor Accident Injuries Regulation 2017 (NSW)
Workers Compensation Act 1987 s 11
Cases cited

N/A

Text citedN/A
Parties ABT - Claimant
NRMA Insurance Pty Ltd- 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 ABT
InsurerNRMA Insurance Pty Ltd
Claim Number NWRTP180159001
The Reviewable Decision
Reviewable decision-makerMichael Sofoulis
Date of Reviewable decision                                         27 November 2018
Nature of Reviewable decision Whether the insurer is entitled to refuse payment of statutory benefits.
The Merit Review
Our Reference 10051200
Merit Reviewer Michael Sofoulis
Date of Merit Review Certificate 27 November 2018

Merit Reviewer's Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)[insert subsection] of the Motor Accident Injuries Act 2017, about [insert details here].

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed
o  The insurer requires the claimant to make a claim for workers compensation for the injury with the relevant workers compensation insurer, in accordance with s3.35(4) of the Act, within 10 days of the date on which the claimant receives this determination.
  • Effective Date: This determination takes effect on [enter date].

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

Michael Sofoulis
Merit Reviewer, Dispute Resolution Service

Merit Reviewer's Reasons for determination

Background

1.  The claimant, ABT, is a 54 year old carpenter. He was involved in a motor vehicle accident on 26 June 2018. The accident took place at approximately 12.00pm.

2.  The claimant had driven his vehicle along Dobroyd Parade in Haberfield and was stationary at the intersection of Dobroyd Parade and Waratah Street when struck in the rear by the at fault driver.

3.  When the accident occurred the claimant was an employee of (Claimant’s Employer).

4.  The claimant lodged an Application for Personal Injury  Benefits on 20 July 2018.

5.  The insurer accepted liability for statutory benefits up to 26 weeks on 30 July 2018.

6.  On 13 August 2018 the claimant told the insurer that he was on his way back to his employer’s warehouse when the accident occurred.

7.  Following that conversation the insurer wrote to the claimant on 14 August 2018 advising him that his claim could not be accepted as he may be entitled to workers  compensation.

8.  There is a dispute between the claimant and the insurer as to whether the insurer is entitled to refuse payment of statutory benefits in accordance s3.35 of the Motor Accidents Injuries Act 2017 (“the Act”).

9.  Section 3.35 of the Motor Accident Injuries Act 2017 provides that no statutory benefits are payable if workers compensation is payable.

10.  There is also a dispute as to whether the claimant was travelling back to his place of work when the subject accident occurred or whether he had gone to lunch on an “unauthorised break” and in doing so had diverted from his usual route.

11.  On 14 August 2018 the claimant’s solicitor emailed the insurer. That email stated: “You have considered that the claimant was injured during the course of his employment. We have sought instructions and advise that the claimant was going to lunch after a delivery which was not an authorised break and had also diverted from his usual route. Given the circumstances, the claimant injuries was sustained not during the course of his employment and he will not be entitled to a workers compensation claim and request you review your decision accordingly. We look forward to your prompt response.”

12.  The claimant’s legal representative made an application for internal review with the insurer on 21 August 2018.

13.  The insurer conducted an internal review and an Internal Review Certificate was issued on 4 September 2018 affirming the original decision.

14.  An application for Merit Review was lodged with the Dispute Resolution Service in September 2018 in accordance with s7.12(1) of the Act and the Motor Accidents Guidelines.

Documents and information

15.  I have considered the documents provided in the application and the reply. I have also sought clarification from the claimant’s solicitor as to whether the claimant has lodged an application with the relevant workers compensation insurer. I have not received a reply.

16.  The claimant’s submissions in support of their application for Merit Review are summarised below:

  • The claimant’s solicitor maintains that the claimant was not injured during the course of his employment.
  • The claimant’s solicitor stated that when the subject accident occurred the claimant was going to lunch and was not on an authorised break and had also diverted from his usual route.
  • The claimant’s solicitor maintains that the claimant’s injuries were not sustained during the course of his employment and as a result he will not be entitled to workers compensation.
  • The claimant’s solicitor subsequently provided a letter from the claimant’s employer (Claimant’s Employer) dated 24 September 2018. The employer stated that the claimant was not injured during the course of his employment with his company, that he was going to lunch after a delivery and that it was therefore an unauthorised break. The employer also stated that the claimant had diverted from his usual route when the accident happened and will therefore not be entitled to workers compensation.

17.  The insurer’s submissions in reply are summarised below:

  • The insurer maintains that the claimant is not entitled to statutory benefits as he may be entitled to workers compensation at the current time.
  • The insurer relies on s 3.35(4) which provides that an insurer may require the injured person to make a claim for workers compensation if there are reasonable grounds that workers compensation is or may be payable in respect of the injury concerned.
  • The insurer maintains on the basis of a conversation that took place between the claimant and the claims officer on 13 August 2018, that the claimant was returning to his place of work having completed a delivery of goods when the subject accident occurred.
  • The insurer does not accept the claimant’s “amended version of events” that the claimant was in fact going to lunch after a delivery which was not an authorised break and was a diversion from his usual route.
  • The insurer has submitted that even if the claimant was going to lunch as alleged, after having completed a delivery, it would not necessarily prevent the claimant from having entitlements under the Workers Compensation Act 1987. The insurer refers to section 11 of the Workers Compensation Act 1987 which deals with recess claims.
  • Section 11 of the Workers Compensation Act 1987 deals with a worker’s temporary absence from his or her place of employment during any ordinary recess or authorised absence. Unless a worker subjects himself or herself to an abnormal risk of injury any injury sustained during that absence will be considered to be an injury arising out of the course of their employment.
  • The insurer states that the claimant has failed to comply with the insurer’s request to make a claim for workers compensation with respect of the injury concerned under s3.35(2)(b).

Legislation

18.  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”)

19.  The claimant has requested a Merit Review of the insurers decision that they are not entitled to statutory benefits because they may be entitled to workers compensation benefits.

20.  It is necessary to firstly determine whether the insurer has complied with the notice provisions in the Act and Motor Accident Guidelines.

21.  Section 3.19 of the Act deals with the notice provisions required before discontinuing or reducing weekly benefits.

22.  Section 3.19(1) makes it clear that the notice provisions only apply in the event that an injured person has received weekly payments of for a continuous period of 4 weeks.

23.  Section 3.19(7) states that the section does not apply to the suspension of weekly payments of statutory benefits by or under a provision of this Act.

24.  The claimant received statutory benefits for a period of 2 weeks before payments were suspended. Therefore section 3.19 has no application.

25.  Clauses 4.41, 4.59, 4.60 and 4.61 of the Motor Accident Guidelines also deal with notices for declined or partially declined statutory benefits.

26.  I find that the insurer’s correspondence of 14 August 2018 met the requirements of 4.41, 4.59 and 4.60 in that it included: the consequences of the decision, including any effects on claimant’s entitlement to damages; the reason for the decision; copies of the information relevant to the decision; how the decision can be reviewed and; the claimant can seek help from the insurer or the Authority to understand the decision and rights of review and provide their contact  details.

27.  I find the insurer has complied with these requirements and that notice was properly given in the circumstances.

28.  The circumstances suggest that the insurer had reasonable grounds to suspect that workers compensation is or may be payable in respect of the injury concerned. The insurer was entitled to therefore rely on section 3.35(4) and require the injured person to make a claim for workers compensation.

29.  An insurer has no capacity to determine whether workers compensation is payable to an injured person. If the claimant was injured in the course of his employment or whether his claim is a recess claim can only be determined by the workers compensation insurer.

30.  By correspondence dated 14 August 2018 the insurer communicated to the claimant and his solicitor that a workers compensation claim should be lodged with the relevant employer. In accordance with s3.35(4) of the Act that request was therefore properly made.

31.  There is no evidence that the claimant has lodged a workers compensation claim in circumstances where he may be entitled to such benefits. Accordingly, the insurer is entitled to cease payment of statutory benefits in accordance with section 3.35(2)(b) of the Motor Accident Injuries Act 2017.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed:
o  The insurer may refuse statutory benefits under part 3 of the Act for the claimant on the basis on its interactions and correspondence with the claimant to date.

o  The insurer requires the claimant to make a claim for workers compensation for the injury with the relevant workers compensation insurer, in accordance with s3.35(4) of the Act, within 10 days of the date on which the claimant receives this determination. The reasons given for this Merit Review Determination are the reasons contained in this Review.

  • Effective Date: This determination takes effect on 27 November 2018.
  • Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,600.00 plus GST.

Michael Sofoulis
Merit Reviewer, Dispute Resolution Service