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ACD v GIO General Limited [2018] NSWDRS CA 056

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits - weekly payments - time limits - extension - incapacity - whiplash injury - medical certificate - full and satisfactory explanation for delay - no discretion to extend time
Legislation citedInterpretation Act 1987 (NSW) s 50F
Limitation Act 1969 (NSW)
Motor Accidents Injury Act (NSW) ss 6.13, 7.36, Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

N/A

Text citedN/A
Parties ACD- Claimant
GIO General Limited - 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

ClaimantACD
InsurerGIO General Limited
Date of Accident26 June 2018
DRS Reference10056291
Insurance Claim NumberY057534005-01
Date of Internal Review19 September 2018
DRS Claims Assessor Colin Stoten
Date of Decision5 November 2018
Conference date and timeDetermined on the Papers

In respect of the issue to be determined, I find:

  1. For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits in respect of the period from the date of accident to the date the claim was made.
  2. That the Claimant’s costs are assessed at $nil.
  3. Effective Date: 5 November 2018

Colin Stoten
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 weekly payments in accordance with s6.13.

1. Section 6.13(2) requires a claim form for statutory benefits be made within 28 days before statutory benefits can be backdated to the date of the accident.

2. It is common ground that the claim in this matter was not made until the 29th day and so fell short of the section by 1 day not including the date of accident.

3. The Insurer says there is no discretion to extend the time for making of the claim unlike section 6.13(1) where time can be extended if a full and satisfactory for the delay is provided.

4. On 6 September 2018 the Claimant sought an internal review of the Insurer’s decision not to backdate payment of weekly statutory benefits. On 19 September 2018 the Insurer conducted an internal review and upheld the original decision.

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’s solicitor provided written submissions as to the operation of s6.13(3) to extend the time. Further, the Claimant’ solicitor sought to argue that the Claimant was not very conversant with the English language and had suffered injury in the accident and that he was incapacitated to that extent so as to stop time running during the 28 day period.  I requested the Claimant’s solicitor to make any further oral submissions at today’s teleconference but there was nothing further to add.

7. The Insurer simply says there is no discretion to extend the time period of 28 days in s6.13(2).

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 Guidelines 2017
  • Limitation Act 1969
  • Interpretation Act 1987

Reasons

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

10. On 26 June 2018 the Claimant was involved in a motor vehicle accident on Auburn Road Yagoona when whilst stopped at traffic lights his vehicle was struck from behind and pushed into the intersection.

11. As a result of the accident the Claimant suffered neck and back injuries and the medical certificate provided in support of the application refers to a whiplash injury to the Claimants neck aggravating pre-existing neck pain in the presence of disc bulges at C5/6 & C6/7 with foraminal narrowing.

12. The GP provided a medical certificate certifying the Claimant was unfit for work as a bus driver and was uncertain as to when the Claimant would be able to return to work.

13. The Claimant saw his solicitor on 11 July 2018 when the Claimant was told of the relevant time frames for submitting claims including the 28 day time frame for statutory benefits. He was given a medical certificate to have his doctor complete in order for the claim to be lodged within 28 days.

14. The Claimant attended upon doctors on 13 and 16 July 2018 but was unable to have the certificate completed.

15. He again was reminded by his solicitor on 20 July that the claim form needed to be submitted to the Insurer by 24 July 2018.

16. Ultimately he attended on his GP again on 25 July when the certificate was completed and the claim form duly submitted to the Insurer.

17. What the Claimant’s solicitor says is that having regard to the Claimant’s age (58), lack of education and training and limited English skills ( born in XXXXXX) and lack of knowledge consideration should be given to extend the 28 day period to enable the Claimant to be compensated for his 4 week loss of earnings. In other words he has provided a full and satisfactory explanation for the delay as required by s6.13(3)

18. The difficulty is of course that s6.13(3) applies only to an extension of the 3 month period referred to in s6.13(1) and not to s6.13(2).

19. The Insurer has referred to the earlier DRS decision in which another assessor has interpreted section 50F of the Limitations Act 1969 to have application to an extension of time application in respect of s6.13(2). The Claimant referred to in that decision was very seriously injured in a motorcycle accident and was hospitalised for 44 days. As such the injured Claimant in that case was able to satisfy the requirement in s50F of incapacity. That is not the claim with which I am dealing, and the fact that the Claimant was able to see his solicitors and attend upon doctors of his choosing within the 28 day period is clearly evidence of capacity to exercise his rights to bring a claim.

20. I accordingly cannot find any basis upon which the Claimant can rely in order to seek recovery of his first 4 weeks of statutory payments.

21. I note that if the Claimant were to be otherwise entitled to bring a claim for damages then he could seek recovery of the whole of his past loss of earnings including the first 4 weeks of wages.

Conclusion

22. I find the Insurer is entitled to refuse payment of statutory benefits from the date of accident to the date the claim was made, that is for the period from 26 June 2018 to 24 July 2018.

Costs and disbursements

23. As the Claimant has been unsuccessful in this application I decline to award costs.

Conclusion

My determination of the Miscellaneous Claim is as follows

24.   For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits from the date of accident to 24 July 2018.

25.   Effective Date: This determination takes effect on 5 November 2018

26.   Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $ nil.

Colin Stoten
Decision Maker
Dispute Resolution Service