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AGT v Allianz Australia Insurance Ltd [2019] NSWDRS MR 178

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsMinor injury – DRS application – medical dispute – physical injury – psychological injury – entitlements – legal costs – payment of legal costs for three applications
Legislation CitedMotor Accident Injuries Act 2017 (NSW) ss 7.13(4), 7.17, 7.20, 8.3, 8.10(1), Schedule 2 clause 1(aa), Schedule 2 Clause 2(e)

Motor Accident Injuries Regulation 2017 Schedule 1 Part 1 clause 2, Schedule 1 Clause 2(1) and 2(3)

Motor Accident Guidelines (as amended on 15 January 2019)
Cases CitedN/A
Text CitedN/A
PartiesAGT– Claimant

Allianz Australia Insurance Ltd – Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant and injured persons.

MERIT REVIEW CERTIFICATE

REASONS FOR DECISION – MERIT REVIEW

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

BACKGROUND

1. AGT was injured in a motor vehicle accident on 28 July 2018. Allianz determined that AGT’s injuries were minor pursuant to the Motor Accident Injuries Act 2017 in a liability notice dated 8 November 2018. This determination was confirmed in an internal review dated 28 November 2018.

2. AGT’s Solicitor lodged an application at the Dispute Resolution Service in relation to the minor injury dispute. The matter was dealt with as a single minor injury dispute (application number 10063402).

3. Assessor Alan Home determined that AGT’s physical injuries caused by the accident were minor and issued a Medical Assessment Certificate dated 4 February 2019. Assessor Sharon Reutens determined that AGT’s psychological injuries was a minor injury and issued a Medical Assessment Certificate dated and 9 April 2019.

4. AGT’s solicitor sent the following three invoices to Allianz;

a. Invoice dated 18 February 2019 in the amount of 1796.26 for lodging DRS Application – Medical Dispute (physical) in the amount of $1796.26 including GST.

b. Invoice dated 23 March 2019 in the amount of 1796.26 for lodging DRS Application – Medical Dispute (report writing) in the amount of $1796.26 including GST.

c. Invoice dated 22 April 2019 in the amount of 1796.26 for lodging DRS Application – Medical Dispute (psychological) in the amount of $1796.26 including GST.

5. On 10 May 2019 Allianz advised that that only one invoice can be paid for the minor injury dispute. On 15 June 2019 Allianz paid one invoice in the amount of $1796.26.

6. The issue in dispute is whether AGT 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. For the purpose of the Act this is the ‘reviewable decision’. I note that this application relates to entitlement to legal costs in respect of the Medical Dispute and not the Merit Review (weekly payments).

7. It does not appear that AGT sought 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.

8. AGT lodged his application for merit review with the DRS on 11 June 2019. The application was accepted and falls within the jurisdiction of the DRS as a merit review matter under Schedule 2(1)(aa) of the Act.

DOCUMENTS CONSIDERED

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

LEGISLATION

10.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

11. AGT’s solicitor made the following submissions in the application.

“We have requested the Insurer to pay our professional legal costs for lodging the application to SIRA (DRS 1-2e Minor Injury physical) on 14 January 2019, 20 March 2019, 9 May 2019, 28 May 2019 and 4 June 2019.

On 30 May 2019, the insurer contended that no legal costs are payable.

According to clause 2(3) of Schedule 1 of the Motor Accident Injuries Regulation 2017, the insurers are liable to pay the costs of legal services to the applicant.”

The insurer has written an identical letter in respect of the Minor injury psychological invoice for costs.

12. The Insurer submits under the heading ‘Entitlement’:

  • Clause 2(1), Schedule 1 of the Regulations clearly limits the maximum costs payable to a legal practitioner for legal services provided in relation to a medical assessment to be 16 monetary units.
  • Section 7.17 then defines a medical assessment to be an assessment of a medical assessment matter. The medical assessment matter in this case is “whether the injury caused by the motor accident is a minor injury for the purpose of the Act.”
  • As such, the costs payable for the determination of whether the Claimant has a minor or non-minor injury caused by the motor vehicle accident (physical, psychological or both) is limited to 16 monetary units.
  • It is irrelevant whether the Claimant has lodged separate application for each injury sustained because the medical assessment matter as a whole pertains to whether the Claimant has minor or non-minor injuries. As such, the insurer submits that the legal fees are capped for the entire dispute type.

REASONS

13. The issue in dispute is AGT’s entitlement to legal costs relating to the application for medical assessment of the ‘minor injury’ dispute.

14. 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.

15. Therefore, the costs of medical assessments are recoverable. It is now a matter for me to determine AGT’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.

16. AGT’s Solicitor lodged an application, on behalf of AGT, for medical assessment with the DRS in respect of the Insurer’s decision of 28 November 2018, that he had a ‘minor injury’. That application was subsequently referred to Assessor Reuters for assessment of the psychological injuries, and to Assessor Home for assessment of the physical injuries. Both Assessors found that AGT has a minor injury for the purposes of the Act.

17. AGT’s legal representatives, Stephen Young Lawyers 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)’.

18. The insurer paid one of those invoices, and submits no further payment is required.

19. Although only one application for medical assessment was lodged, AGT’s legal representatives issued two invoices claiming for AGT’s physical and psychological injuries.

20. I am of the view that I am not 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. 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

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

23. I 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 relates to the ‘medical dispute’, in this case the assessment of ‘minor injury’. The maximum monetary units do not relate to the injuries themselves or the types of injuries. Only one dispute has been referred to the DRS and that is the “medical dispute” regarding ‘minor injury’.

24. In AGT’s matter, given that there was one medical dispute about minor injury, that was referred to the DRS, I find AGT is limited to a maximum of 16 monetary units in respect to the application for medical assessment.

25. As AGT is only entitled to payment of one invoice and the Insurer has already paid one invoice for the dispute I find that no further legal costs are recoverable for the application.

DETERMINATION

26. The Dispute Resolution Service affirms the reviewable decision of the Insurer dated 28 November 2018.

27. 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 Bacci

Merit Reviewer and Claims Assessor

Dispute Resolution Service