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ABV v QBE Insurance [2018] NSWDRS MR 048

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsEntitlement to refuse payment of statutory benefits – workers compensation claim – self-employed claimant – inconsistent information provided by claimant – removalist van
Legislation cited                    Motor Accidents Injury Act (NSW) ss 1.3(2)(a), 1.3(2)(g), 1.3(4), 1.3(5), 3.35, 3.35(1), 3.35(2)(b), 3.35(4), 3.35(7), 6.3(3), 6.3(3)(c), 7.13(4), Schedule 2(1)(s)
Motor Accident Guidelines effective 13 July 2018 s 7.12(1)
Motor Accident Injuries Regulation 2017 (NSW)
Worker Compensation Act 1987
Cases cited

N/A

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

Merit Review Certificate

ABV Certificate

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

The Claim
Claimant ABV
InsurerQBE Australia
Claim Number 360005331901
The Reviewable Decision
Reviewable decision-makerJeanette Woollacott
Date of Reviewable decision                                         3 September 2018
Nature of Reviewable decision Whether the Insurer is entitled to refuse payment of statutory benefits in accordance with section 3.35 of the Act
The Merit Review
Our Reference 10052042
Merit Reviewer Jeanette Woollacott
Date of Merit Review Certificate 7 November 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, on the basis that the claimant failed to comply with a request by the Insurer under section 3.35(4) of the Act to make a claim for workers compensation.

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:
  • The Insurer may not refuse statutory benefits under Part 3 of the Act on the basis that the insurer did not have reasonable grounds that workers compensation is or may be payable in accordance with s.35(4) of the Act and did not communicate its decision in accordance with the obligations under section 6.3(3) of the Act.
  • The Insurer requires the claimant to make a claim for workers compensation for the injury with the relevant workers compensation insurer, in accordance with section 3.35(4) of the Act, within 14 days of the date on which the claimant receives this determination.
  • Effective Date: This determination takes effect from 17 August 2018.

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

Jeanette Woollacott
Merit Reviewer, Dispute Resolution Service

Merit Reviewer’s Reasons for Determination

Background

1.   The dispute is about whether the Insurer is entitled to refuse payment of statutory benefits under section 3.35(2)(b) of the Act on the basis that the claimant failed to comply with a request by the Insurer under section 3.35(4) of the Act to make a claim for workers compensation.

2.   The claimant is a self-employed removalist. They were injured in a motor vehicle on 11 June 2018. At the time of the accident they were a passenger in a work vehicle and were on their way home at the time of the accident.

3.   The claimant completed an Application for personal injury benefits which was lodged with the CTP Insurer. The date on the application is 9 July 2018.

4.   On 27 July 2018, the Insurer wrote to the claimant’s legal representative declining liability for personal injury benefits on the basis that they were not covered by the compulsory third-party scheme and required the claimant to make a claim for workers compensation.

5.   On 9 August 2018, the insurer wrote to the claimant’s legal representative and again requested the claimant make a claim for workers compensation.

6.   On 17 August 2018, the Insurer wrote to the claimant’s legal representative refusing statutory benefits under section 3.35 of the Act on the grounds that a workers compensation claim had not been made.

7.   The claimant’s legal representative made an application for internal review on their behalf. The Insurer conducted the review and wrote to the claimant’s legal representatives on 3 September 2018, indicating that it maintained the original decision to decline liability for personal injury benefits on the basis that there were reasonable grounds that workers compensation was payable and the claimant had failed to comply with a request by the Insurer to make a claim for workers compensation in respect of their injury.

8.   The claimant disputes that the insurer is entitled to decline the statutory benefit claim as material provided to the Insurer shows that the injury was not work related and the claimant would not be entitled to benefits under the Workers Compensation Act 1987 (the 1987 Act).

9.   An application for merit review was lodged with the Dispute Resolution Service on 28 September 2018 in accordance with section 7.12(1) of the Act and the Motor Accident Guidelines (the Guidelines).

Documents and information

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

Submissions

11.  The claimant’s submissions in support of their application for merit review are summarised below:

  • The claimant sustained personal injuries in a motor vehicle accident on 11 June 2018.
  • The Insurer says the claimant was in the course of their employment and relies on the Certificate of Capacity dated 28 June 2018, which states that the accident occurred in the course of employment.
  • The Insurer says the claimant is entitled to receive workers compensation under the 1987 Act.
  • The Insurer declined the claim in its internal review.
  • Following the internal review, the claimant submitted an amended Certificate of Capacity and a letter from the claimant’s general practitioner that states that the injury was not work related.
  • The circumstances of the claimant’s accident do not give rise to a claim under the 1987 Act as there is no real or substantive connection between the employment and the accident as required by the 1987 Act.

12.   The Insurer’s submissions in its response are as follows:

  • The claimant failed to comply with the Insurers request to make a worker’s compensation claim in accordance with 3.35 of the Act. The decision was upheld at an internal review.
  • The claimant was journeying at the time of the accident in accordance with the 1987 Act. In the alternative, the claimant was in the course of his employment as they were picked up and dropped off at their address each day suggesting their employment commenced when they entered the work truck.

13.   The claimant made further submissions in October 2018 as follows:

  • The Insurer has failed to demonstrate any real and substantial connection between the accident and the claimant’s employment in accordance with the 1987 Act.
  • The driver’s claim has been accepted by their CTP Insurer.
  • The claimant requires medication and food which they cannot afford. Their treating doctors refuse to consult them because there is an insurance dispute.

14.   The Insurer made further submissions in response in October 2018 as follows:

  • The Insurer had reasonable grounds to refuse statutory benefits under Part 3 of the Act.
  • The Certificate of Capacity completed by the claimant’s general practitioner dated 28 June states that the motor vehicle accident happened while at work.
  • The claimant’s statutory declaration dated 23 August 2018, states that the claimant was employed by (Claimant’s Employer), was picked up each day from their house in the work truck and their co-worker was driving them home at the time of the accident.
  • When the accident occurred, the claimant was a passenger in their employer’s vehicle during the course of their employment.
  • On 27 July 2018, the Insurer required the claimant to make a claim for worker’s compensation. The request was made in accordance with section 6.3(3)(c) of the Act.
  • Whilst the claimant’s solicitors have indicated that workers compensation is not payable, the matter must be put before the relevant workers compensation insurer for their decision.

Legislation

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

a.  Motor Accident Injuries Act 2017 (NSW) (“the Act”)

b.  Motor Accident Guidelines effective 13 July 2018 (“the Guidelines”)

c.  Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

Reasons

Legislative Framework

16.   The claimant has requested a merit review of the Insurer’s decision that they are not entitled to statutory benefits as the result of a failure to comply with a request by the Insurer to make an application for workers compensation.

17.   Section 3.35(1) of the Act 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 liability for workers compensation had not been commuted).

18.   An insurer has no capacity under the compulsory third-party insurance scheme to determine directly whether workers compensation is payable to an injured person. The Act therefore provides direction to insurers in respect of payment of statutory benefits, where there is a potential claim for workers compensation. The direction is given under the following sections of the Act;

19.   Section 3.35(4) of the Act states:

If the relevant insurer for a claim for statutory benefits under this part considers on reasonable grounds that workers compensation is or may be payable in respect of the injury concerned, the insurer may require the injured person to make a claim for workers compensation in respect of the injury.

20.   Section 3.35(2) of the Act states:

The relevant insurer for a claim for statutory benefits under this Part is not entitled to refuse payment of statutory benefits under this Part on the grounds that workers compensation is payable in respect of the injury unless:
(a)  the injured person has made a successful claim for workers compensation in respect of the injury, or

(b)  the injured person has failed to comply with a request by the relevant insurer under this section to make a claim for workers compensation in respect of the injury.

21.   Any request relied on by the Insurer under section 3.35(2)(b) of the Act must therefore have been made in accordance with the provisions under section 3.35(4) of the Act.

Communications between the claimant and the Insurer

22.   The claimant’s Application for personal injury benefits dated 9 July 2018, states that the motor vehicle accident happened at 6.00pm on 11 June 2018 and has identified his employer as (Claimant’s Employer).

23.   A Certificate of Fitness dated 27 June 2018 completed by the claimant’s general practitioner states “MVA injury while at work”.  The Certificate of Capacity requests information of the claimant’s Employer however, no details are provided. The insurer and claimant refer to this Certificate of Capacity being 28 June 2018 however, the Certificate of Capacity before me is dated 27 June 2018. I therefore adopt the latter date.

24.   The Certificate of Earnings dated 1 August 2018 completed by the claimant states that the claimant’s usual working hours are 8.00am to 5.00pm. Section 2 of the Certificate states that the claimant’s employer is (Claimant’s Employer). The claimant has also completed section 3, which requests details for self-employed persons. The claimant has stated the name of the organisation as (Claimant’s Employer). The claimant also states he requires an interpreter and his preferred language is Arabic.

25.   On 27 July 2018, the Insurer gave notice to the claimant that they considered the claimant was in the course of employment at the time of the accident and required the claimant to make a claim for workers compensation. The insurer relied on Dr El Skafi’s Certificate of Capacity dated 27 June 2018, that the motor vehicle accident occurred in the course of the claimant’s employment.

26.   On 9 August 2017, the insurer wrote to the claimant’s legal representative and again requested the claimant lodge a workers compensation, on the basis that the Certificate of Capacity states that the motor vehicle accident occurred in the course of the claimant’s employment. The insurer also wrote the following:

“he would be entitled to received benefits under the Workers Compensation Act 1987.”

“Your client has identified his Employer as being (Claimant’s Employer).”

27.   The insurer wrote to the claimant’s legal representative on 17 August 2017 refusing statutory benefits under section 3.35 of the Act, on the grounds that the claimant had not lodged a workers compensation claim. The Insurer again relied on Dr El Skafi’s Certificate of Capacity dated 27 June 2018. The insurer also wrote the following:

“I understand that your client was still in the truck at the time of the accident and this would be considered his ‘workplace’.”

28.   There is a subsequent internal review dated 3 September 2018 in which the Insurer has affirmed its decision.

29.   Section 3.35(4) provides authority for the Insurer to request the claimant to make a workers compensation claim if there are reasonable grounds that workers compensation is or may be payable. The relevant determination therefore is whether the Insurer had reasonable grounds that workers compensation is or may be payable at the time they requested the claimant to lodge a workers compensation claim.

30.   The information provided by the claimant to the insurer was inconsistent. The claimant completed sections 2 and 3 of the Certificate of Earnings, when only one section of the form was required, and the Certificate of Capacity dated 27 June 2018 provides no details of the claimant’s employment status. I consider the insurer had insufficient information on which to conclude the claimant was employed by (Claimant’s Employer).

31.   The claimant states in the Application for personal benefits that the accident happened at 6.00pm. This has not been disputed by the Insurer. The Certificate of Earnings state that the claimant’s usual working hours were 9.00am to 5.00pm. The accident therefore took place outside the claimant’s usual working hours.

32.   It was clear to the insurer that the claimant’s first language was Arabic and that they required an interpreter. The claimant also likely had little appreciation of the significance of their employment status to the outcome of their claim for statutory benefits. Given this and the inconsistencies in the information submitted by the claimant, further enquiries were required by the Insurer so as to be satisfied the accident took place during the course of the claimant’s employment.

33.   I therefore consider that the Insurer did not have reasonable grounds that workers compensation is or may be payable at the time it requested the claimant to lodge a workers compensation claim.

34.   Section 6.3(3) of the Act sets out the duty of Insurers to act with good faith as follows:

  • The duty to provide a claimant with information about entitlements to statutory benefits and damages,
  • A duty to disclose all relevant information (including reports by health professionals) relied on to make a decision on a claim,
  • The duty to provide written reasons for all decisions that materially affect a claimant’s entitlement to statutory benefits or damages,
  • The duty to advise a claimant of any right under this Act to review any such decision of the insurer,
  • The duty to make prompt payment of statutory benefits and damages.
  • The duty to make prompt payment of statutory benefits and damages.

35.   The insurer’s emails dated 27 July and 9 and 17 August 2018, do not disclose any reasonable grounds on which the Insurer relies when considering that workers compensation is or may be payable, as required under s.3.35(4) of the Act. The  insurer’s language is vague and imprecise. The insurer uses terminology including “I understand”, “I consider” and “this would be considered” and does not provide any reasons, source of authority or disclose the relevant information relied on in reaching its decision. The insurer also failed to refer to the relevant sections of the Act under which the requirement to make a claim for workers compensation was made.

36.   I therefore consider that the insurer failed to communicate its decision in accordance with the obligations under section 6.3(3) of the Act.

37.   As a result, I find that the correct and preferable decision in this matter is that the Insurer cannot rely on section 3.35(2)(b) of the Act to refuse payment of statutory benefits, at this stage.

38.   I note however, that section 3.35(1) of the Act 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 liability for workers compensation had not been commuted).

39.   The question remains as to whether compensation is payable to the claimant under workers compensation. While the claimant’s legal representative maintains that they do not consider workers compensation is payable for a number of reasons, the matter is not for the legal representative to decide, or for me to decide, but must be put to the relevant workers compensation insurer for their decision.

40.   In order to expedite the process of providing the claimant with appropriate benefits, it would be beneficial if the claimant could provide details of the workers compensation claim to the CTP Insurer to follow up and clarify, provision for which is made under section 3.35(7) of the Act.

41.   In considering my determination of this merit review, I have also considered the objects of the Act and in particular sections 1.3(2)(a), 1.3(2)(g), 1.3(4) and 1.3(5) which provide;

(2) For that purpose, the objects of this Act are as follows:
(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities.

(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.

(4) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.

(5) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned.

Determination

My determination of the Merit Review is as follows:

The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:

  • The Insurer may not refuse statutory benefits under section 3.35(2)(b) of the Act on the basis that the Insurer did not have reasonable grounds that workers compensation is or may be payable and did not communicate its decision in accordance with the obligations under section 6.3(3) of the Act.
  • The Insurer requires the claimant to make a claim for workers compensation for the injury with the relevant workers compensation insurer, in accordance with section 3.35(4) of the Act, within 14 days of the date on which the claimant receives this determination. The reasons given for this merit review determination are the reasons for this substituted decision of the insurer.

Effective date: This determination has effect from 17 August 2018.

Jeanette Woollacott
Merit Reviewer, Dispute Resolution Service