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AEE v QBE Insurance (Australia) [2019] NSWDRS MR 108

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Merit Review
Catchwords Weekly payments of statutory benefits – loss of wages – Uber driver – self-employed – two jobs – pre-injury duties – statutory duties – procedural fairness – certificates of capacity – no limited capacity – secondary job – GP report – denial of procedural fairness
Legislation cited                   

Motor Accident Injuries Act 2017 (NSW) s 1.3(2)(a), 1.3(2)(b), 1.3(2)(g), 1.3(4), 1.3(5), 3.1(1), 3.16, 6.3(1) & (3), 6.4(1), 7.0, 7.13(4), Div 3.3, Schedule 1, Schedule 2(1)(a)
Motor Accident Guidelines effective 15 January 2019 s 4.47, 4.48, 4.49, 4.52, 4.53
Motor Accident Injuries Regulation 2017 (NSW)

Cases cited

N/A

Text cited N/A
Parties AEE - Claimant
QBE Insurance (Australia)- Insurer
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

Merit Reviewer's Reasons for Determination

Background

1.   There is a dispute between the claimant and the insurer as to whether the claimant is entitled to statutory benefits in relation to their loss of wages as an Uber driver under Division 3.3 of the Motor Accidents Injuries Act 2017 ("The Act" ).

2.   The claimant was injured in a motor vehicle accident on 26 May 2018.

3.   At the time of the accident, the claimant was employed full time as a Product Manager for XXX Nationwide Pty Ltd ('XXX') and also self-employed as a part time Uber driver.

4.   The claimant was able to return to their day time job at XXX however, did not return to their part time job as an Uber driver on account of the injuries sustained in the accident.

5.   The claimant lodged an application for personal injuries benefits on or around 27 June 2018, with respect to their loss of Uber wages and medical treatment.

6.   The Insurer accepted liability for statutory benefits.

7.   On 4 December 2018, the insurer advised the claimant they were not entitled to payment of statutory benefits in relation to their loss of wages for Uber driving, as the certificates of capacity provided the claimant was fit for their pre-injury duties.

8.   The claimant applied for an internal review on 21 January 2019.

9.   The insurer upheld its decision and determined on 31 January 2019, that there is no payment of statutory benefits in relation to the Uber driving, on the grounds that they were fit for their pre- injury duties.

10.  The claimant applied for merit review by the Dispute Resolution Service on 27 February 2019.

Documents and Information

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

Submissions

12.  The claimant submits:

  • They were fit for their normal daytime sedentary work at XXX following the injury.
  • They were not fit for their second part time job as an Uber driver.
  • The certificates of capacity completed by their doctor only dealt with their normal daytime work and did not consider their capacity to work as an Uber driver.

13.  The insurer submits:

  • The claimant has been certified fit for pre-injury duties by their GP since 4 June 2018, with no limited capacities noted in any area, including driving.
  • There is no loss of earnings and therefore no entitlement to statutory  benefits  for weekly payments with respect to the claimant's Uber driving.

Legislation

14.  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 15 January 2019 ("the Guidelines")

c.  Motor Accident Injuries Regulation 2017 (NSW) ("the Regulation")

Reasons

Legislative Framework

15.  The claimant has requested a merit review of the insurer's decision that they are not entitled to weekly payments of statutory benefits in relation to their Uber driving, as they are fit for their full-time pre-injury duties.

16.   After an insurer accepts liability for statutory benefits, weekly payments and/or treatment and care expenses may be payable to an injured person.

17.  Section 3.1 (1) of the Act provides:

"If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part".

18.  Section 3.16 of the Act provides for Guidelines to be made in relation to earning capacity decisions:

(1)  An insurer can make a decision about the pre-accident earning capacity or post­ accident earning capacity of an injured person at any time.

(2)  The Motor Accident Guidelines can provide for the procedures to be followed by insurers in connection with the making of those decisions.

19.  Section 4.47 of Guidelines provides:

An insurer may follow its own procedures in connection with an earning capacity decision but the procedures must align with the following principles:

4.47.1  Insurers comply with statutory duties

4.47.2 Claimants are given procedural fairness

4.47.3  Communication is in plain language

4.47.4  Insurers fix errors promptly

20.  Section 4.48 of the Guidelines provide:

Statutory Duties

The procedures to be followed in connection with a decision about a claimant's earning capacity must comply with the insurer's statutory duty to act with good faith under Division 6.2 of the Act.

21.  Section 4.49 of the Guidelines provide:

Procedural fairness

An insurer must give a claimant procedural fairness when it makes a decision about the person's pre-accident earning capacity or post-accident earning capacity. In addition to  the  statutory duties, this includes:

4.49.1  giving the person a fair opportunity to give information to the insurer to consider for the decision

4.49.2  ensuring the decision maker is not, or is not reasonably perceived to be, biased toward a particular outcome or party

4.49.3  providing the person with all the information the insurer is considering in making its decision, regardless of whether that information supports the decision. This includes joint medical assessments

4.49.4  giving the claimant a right of response, including the right to provide new relevant information held by the claimant within a reasonable time in respect of an earning capacity decision that may adversely affect them.

22.  Section 4.52 of the Guidelines provide:

Fixing errors

An insurer must fix errors in its decisions about a claimant's pre-accident earning capacity or post-accident earning capacity promptly, even after the decision has been made. An insurer is responsible for having procedures in place to fix an error of fact or law. A claimant should not be required to follow the statutory dispute  resolution process to fix such an error.

23.  Section 4.53 of the Guidelines provide:

Model procedures

Alternatively, an insurer may follow the model procedures in Figure 4.1 below.

24.  The model procedures in Figure 4.1, provide for the injured person to be given a fair opportunity to give their own information.

25.  On internal review, further information not previously provided to the insurer can be considered. Section 7.9 of the Act provides:

(6) An internal review can consider information that was not provided before the decision being reviewed was made.

Communications between the Insurer and Claimant

26.  In the application for personal injury benefits dated 27 June [sic], the claimant provides they have "returned to day-time job however have not returned to part time work as an Uber driver."

27.  The claimant provided the insurer with certificates of capacity for the period 4 June 2018 to 17 November 2018. The claimant is certified fit for their pre-injury duties with no limited capacity for activities of daily living, including driving. The claimant's employment in the certificates is stated as a Product Manager for XXX. There is no reference to the claimant's Uber driving.

28.  On 4 December 2018, the insurer declined the claimant's application for payment of weekly payments on the basis that the certificates of capacity provide the claimant is fit for pre-injury duties and they have no limited capacity in any area, including driving.

29.  On an application for internal review on 21 January 2019, the claimant submitted again they were fit for their daytime weekday sedentary job but not fit for their job as an Uber driver and had requested and awaited a report from their GP.

30.  On 31 January 2019, the insurer undertook an internal review and upheld their original decision. The insurer again relied on the certificates of capacity which provide the claimant was fit for pre- injury duties.

31.  The claimant subsequently obtained a report from their GP dated 23 February 2019. The report provides the claimant "can handle his normal duties at XXX nationwide pty ltd  but he had trouble to do his secondary job, worked as Uber driver on afterworks hours and weekend."

32.  The GP also provided the claimant a referral letter dated 22 January 2019, to Dr Tack Shin Lee, Orthopaedic Surgeon, for assessment, as the claimant still presented with "some discomfort in his right shoulder and some difficult to lift right arm". It not clear whether the GP's referral letter was provided to the insurer at the time of the insurer's internal review.

33.  On the application for merit review, the claimant submits they were fit for their daytime work but unfit for their second job as an Uber driver and that the certificates of capacity completed by the doctor only dealt with their normal day time work and did not consider their loss of earnings and incapacity to work as a Uber driver.

34.  Section 7.9(6) of the Act, permits an internal review to consider information that was not provided before the decision being reviewed was made. The insurer could have therefore considered the GP report and GP referral letter at the internal review.

35.  When making an earning capacity decision, the insurer's procedures must align with the Guidelines. Sections 4.49 and 4.53 of the Guidelines require the Insurer to give the claimant a fair opportunity to give information to the insurer to consider for the decision and a right of response, including the right to provide new relevant information in respect of an earning capacity decision that may adversely affect them.

36.  The Insurer carried out their internal review just some 10 days later and determined the application in the absence of the GP report.

37.  In my view, the claimant was not given a fair opportunity to provide the GP report, particularly in circumstances when the claimant had referenced the GP report in their internal review application. Accordingly, I am of the view that the claimant was not given procedural fairness in the internal review process in accordance with section 4.49 of the Guidelines.

38.  Had the insurer waited to receive the GP's report before conducting the internal review, it would have been clear to the insurer that the GP had erred in not addressing the claimant's incapacity with respect to his Uber driving in the certificates of capacity.

39.  On receiving the GP report dated 23 February 2019, the insurer should have identified that their decisions dated 4 December 2018 and 31 January 2019 were founded on incorrect facts. In those circumstances, 4.52 of the Guidelines require the Insurer to take steps to fix any errors in its decision. At this juncture, the insurer should have determined the claimant had no capacity for Uber driving and accepted the claim for statutory benefits with respect to the Uber driving. The claimant shouldn't have been required to follow the statutory dispute resolution process to fix the insurer's error.

40.  The GP report dated 23 February 2019, provides the claimant has been unable to carry out their part time work as an Uber driver. The GP referral letter to Dr Lee dated 22 January 2019 provides the claimant has discomfort in the right shoulder and problems lifting their right arm. I am satisfied that there is sufficient evidence that the claimant was unable to work as an Uber driver and is therefore entitled to weekly payments of statutory benefits for the loss of Uber wages.

41.   Accordingly, I find that the correct and preferable decision in this matter is that the Insurer pay statutory benefits in relation to the loss of Uber wages in accordance with Division 3.3 of the Act from the date of the accident on 26 May 2018 .

42.  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)(b), 1.3{2)(g), 1.3(4) and 1.3(5) which provide;

1.3 Objects of Act

(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.

(b)   to provide early and ongoing financial support for persons injured in motor accidents,

(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 conce rned.

43.  I have also considered sections 6.3 and 6.4 of the Act which provide;

6.3  Duty of claimants and insurers to act with good faith

(1)   A claimant and an insurer each have a duty to act towards the other with good faith in connection with a claim.

(3)  The duty of an insurer to act with good faith includes the following duties:

(e) the duty to make prompt payment of statutory benefits and damages.
6.4 (1)  It is the duty of an insurer and a claimant to endeavour to resolve a claim as justly and expeditiously as possible.

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:
o  The Insurer to pay weekly payments of statutory benefits in relation to the loss of Uber wages in accordance with Division 3.3 and Schedule 1 of the Act.

o  The Insurer to calculate the amount of  weekly payments of statutory benefits payable in relation to the loss of Uber wages in accordance with Division 3.3 and Schedule 1 of the Act.

  • Effective Date: The review decision referred for merit review by the claimant is about the amount of statutory benefits payable by the insurer to  the claimant  from the date of  accident. It is the function of the Dispute Resolution Service on merit review to arrive at the correct and preferable outcome in respect of the weeks covered by the reviewable decision that is referred for review. Accordingly this determination has effect from 26 May 2018.

Jeanette Woollacott

Merit Reviewer, Dispute Resolution Service