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AGB v QBE Insurance Australia Ltd [2019] NSWDRS MR 157

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Merit Review
CatchwordsMedical dispute – minor injury – statutory benefits – medical assessment – physical and psychological injuries – legal costs – reasonable and necessary costs – DRS application – multiple invoices
Legislation cited

Motor Accident Injuries Act 2017 (NSW) ss 1.6, 7.13(4), 7.17, 8.10, Schedule 2 clause 1 (aa), Schedule 2 clause 2(e)

Motor Accident Injuries Amendment Regulation 2017 Schedule 1 Clause 2(1), 2(3), 10(d)

Motor Accident Guidelines 2017 (as amended on 15 January 2019)

Cases cited N/A
Text cited N/A
Parties AGB – Claimant
QBE Insurance Australia Ltd – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

Reasons for Decision

Issued in accordance with section 7.13(4) of the Motor Accident Injuries Act 2017

Background

1.   AGB says he was injured in a motor vehicle accident on 23 April 2018.

2.   QBE Insurance Australia Limited (the insurer) accepted AGB’s claim under the Motor Accident Injuries Act 2017 (“the Act”)

3.   On 7 August 2018 the Insurer determined AGB’s injuries as ‘minor injuries’ under section 1.6 of the Act and advised him that statutory benefits would cease at 26 weeks post-accident.

4.   AGB disputed this decision and the matter was referred to DRS for a medical assessment of the claimant’s physical and psychological injuries. On 22 December 2018, Assessor Crane assessed AGB’s physical injuries as minor injuries for the purpose of the Act. On 30 January 2019 Assessor Virgona assessed AGB’s psychological injuries as minor injuries for the purpose of the Act.

5.   AGB’s legal representatives, Stephen Young Lawyers, subsequently issued an invoice to the Insurer dated 5 February 2019 , for legal costs in the amount of $1,632.96 plus GST, relating to its professional fees in connection with the medical assessment in respect of psychological injuries. The insurer declined to make payment for the invoice in an email to AGB’s legal representatives dated 21 March 2019 on the basis that it had already made payment for this dispute. The insurer commented that minor injury is a singular dispute and only one fee is payable, regardless of whether psychological and physical injury is assessed. This is the “reviewable decision” for the purposes of the Act.

6.   AGB’s legal representatives made two further requests for payment by email dated 28 May

2019 and 5 June 2019, both of which were declined by the insurer for the same reasons.

7.   The issue in dispute is whether AGB is entitled to recover from the Insurer the legal costs incurred pursuant to section 8.10 of the Act, and if so, the quantum of those costs. There is no dispute that the insurer has already paid legal costs to AGB’s legal representatives in respect of this application. The claimant considers those costs confined to the application made in respect of the assessment of physical injuries and seeks to recover costs for the application made in respect of the assessment of psychological injuries.

8.   AGB did not seek an internal review by the Insurer of the reviewable decision and I note that clause 10(d) of the Regulations excludes disputes arising under section 8.10 of the Act from the requirement of internal review.

9.   AGB lodged his application for merit review with the Dispute Resolution Service (“DRS”) on 6 June 2019. The application was accepted by the DRS and the dispute is subject to merit review under Schedule 2(1)(aa) of the Act.

Documents considered

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

Legislation

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

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Guidelines 2017 (as amended on 15 January 2019) (“the Guidelines”)
  • Motor Accident Injuries Amendment Regulation 2017 (NSW) (“the Regulations”)

Submissions

12.   AGB submits:

a.   According to cl 2(3) of Schedule 1 of the Motor Accidents Regulation 2017 the insurers are liable to pay the costs of legal services to the applicant.

b.   There is no provision in the Act, Guidelines or Regulation indicating whether insurers are liable to pay for legal costs for two minor injury applications to DRS.

c.   Physical and psychological minor injuries are considered separately and independently from each other. As two assessments have been conducted, legal representatives should be able to charge twice for the legal service provided as two sets of submissions and evidence would have been gathered.

13.   The Insurer submits:

a.   Schedule 1.1.2 of the Regulation makes provision for the maximum costs for legal services provided to a claimant or an insurer in relation to a matter relating to the assessment of a medical dispute. Schedule 1.1.2(1) provides:

“The maximum costs for legal services provided to a claimant or an insurer in connection with a medical assessment under Division 7.5 of the Act, as allowed by the Claims Assessor or Court, is 16 monetary units (to a maximum of 60 monetary units per claim)”.

b.   As a consequence the claimant’s solicitor is entitled to the sum of $1,632.96 plus GST in relation to this dispute.

c.  There has only been one dispute and it is note that the DRS reference number is identical on the Certificates issued by Assessor Crane and Assessor Virgona. As there has been only one dispute the claimant’s solicitor is only entitled to one set of costs.

Reasons

14.   The issue in dispute before me is AGB’s entitlement to legal costs relating to the application for medical assessment of the ‘minor injury’ dispute.

15.   Section 8.3 of the Act provides for the fixing of maximum costs recoverable by Australian legal practitioners. Section 8.10(1) provides that a claimant for statutory benefits is (subject to that section) entitled to recover from the insurer ‘reasonable and necessary’ costs in connection with the claim. This is qualified by subsections (2), (3) and (4) which provide that the recovery of costs is allowed if payment is permitted by the Regulations or the DRS.

Reasonable and Necessary Costs

16.   Having established that the costs of medical assessments are recoverable, I will proceed to assess AGB’s reasonable and necessary legal costs in respect of the medical assessment. Sub-clause (1) of

Schedule 1, Part 1, clause 2 of the Regulations limits costs in connection with medical assessments to 16 monetary units. I am required, pursuant to the jurisdiction conferred by Schedule 2, clause 1(aa) of the Act (above), to determine the quantum of the maximum costs I consider appropriate.

17.   AGB, through his legal representatives, lodged an application for medical assessment with the DRS in respect of the Insurer’s decision of 7 August 2018, that he had a ‘minor injury’. That application was subsequently referred to Assessor Virgona for assessment of the psychological injuries, and to Assessor Crane for assessment of the physical injuries. Both Assessors found that AGB has a minor injury for the purposes of the Act.

18.   AGB ’s legal representatives, Stephen Young Lawyers has since issued two invoices to the Insurer claiming recovery of legal costs in the amount of $1,796.26 for ‘DRS Application – Medical Dispute (Physical)’ and $1,796.26 for ‘DRS Application – Medical Dispute (Psychological)’.

19.   The insurer has made payment of one of those invoices, and submits that no further payment is required.

20.   It is open to me to permit any amount of costs up to the maximum amount, including nil. However, I do not consider I am able to allow the total cost of the two invoices, in the sum of $3,592.52, as it exceeds the maximum costs of 16 monetary units ($1,633.00) provided in the Regulations.

21.   It appears that AGB’s legal representatives have issued the two invoices on the basis that AGB has both physical and psychological injuries; although only one application for medical assessment was lodged, listing a number of different physical injuries and a psychological injury, and attaching one set of submissions.

22.   Regardless of whether two separate applications are lodged or not, I note that section 7.20 of the Act provides that a “medical dispute” can be referred to the DRS for a “medical assessment”. A definition for “medical assessment” is provided at section 7.17 as follows:

medical assessment means an assessment of a medical assessment matter under this Division

23.   Schedule 2, clause 2(e) of the Act declares a dispute about whether an injury is a ‘minor injury’ as a “medical assessment matter”.

24.   It is important to note that the maximum costs provided at Schedule 1, Part 1, clause 2 of the Regulations relates to costs in connection with a “medical assessment”, which is defined to be an assessment of a “medical assessment matter”. The maximum of 16 monetary units therefore does not relate to injuries or types of injuries, which appears to be the basis of the two separate invoices issued in this matter, but rather the “medical dispute” regarding ‘minor injury’ which has been referred to the DRS for a “medical assessment”.

25.   In AGB’s matter, given that there was one medical dispute about minor injury, that was referred to the DRS, I consider the maximum of 16 monetary units applies in respect to AGB’s application for medical assessment.

26.   As noted above, the Insurer has already paid one invoice for the dispute. As I consider that AGB is only entitled to payment of one invoice I find that no further legal costs are recoverable for the application.

Determination

27.   The Dispute Resolution Service affirms the reviewable decision of the Insurer dated 21 March 2019.

28.   The amount of the Claimant’s costs assessed on this application in accordance with the Motor Accident Injuries Regulation 2017 is $nil inclusive of GST.

Michelle Boyle
Merit Reviewer and Claims Assessor,
Dispute Resolution Service