AHA v QBE Insurance [2019] NSWDRS CA 185

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction	Miscellaneous Claims Assessment
Catchwords	Weekly payments of statutory benefits – fell asleep – single motor vehicle accident – delay in lodgement – at fault
Legislation Cited	Motor Accident Injuries Act 2017 (NSW) ss 6.13, 7.36(4), Schedule 2(3)(k) Motor Accident Injuries Regulation 2017 Motor Accident Guidelines 2017
Cases Cited	N/A
Text Cited	N/A
Parties	AHA – Claimant QBE Insurance – Insurer
Disclaimer	This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

MISCELLANEOUS CLAIMS ASSESSMENT CERTIFICATE

REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

BACKGROUND

1. 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 payments of statutory benefits in accordance with Section 6.13 of the Motor Accidents Injuries Act 2017.

2. The Claimant AHA sustained injuries in a single motor vehicle accident on the 18th of August 2018.

3. In his claim form the Claimant noted that he fell asleep on the way to work. There were no other vehicles involved. The Insurer and the Claimant accept that the Claimant was involved in an at fault motor vehicle accident.

4. The 28 days expired on the 15th of September 2018. The Insurer received AHA’s personal injury claim form on the 20th of March 2019 which was outside the 6 month period for which benefits might be available for an at fault driver.

5. The Insurer denied payment of weekly benefits to the Claimant, but did pay for some treatment expenses.

6. The Claimant sought an internal review of the Insurer’s decision.

7. A notification of the internal review attaching Certificate of determination dated 6 August 2019 was forwarded to the Claimant on 6 August 2019.

8. The internal review outcome noted as follows; “The Insurer is entitled to refuse payment of statutory benefits in accordance with Section 6.13 of the Motor Accidents Injuries Act 2017.”

9. The Claimant provided a statutory declaration explaining his delay in lodging the claim and this is dated 2 May 2019. I note that the Claimant attended Lawyers on the 20th of November 2018 and 18 January 2019.

10. It would appear the Claimant attended those firms in relation to his workers compensation claim or potential claim. He stated that he was not given any advice in relation to a third party claim.

MY DECISION

8. In coming to my decision I have relied upon the Motor Accidents Injuries Act 2017 and the Motor Accidents Guidelines.

9. I note as follows;

10. Section 6.13 of the Motor Accidents Injuries Act 2017 notes;

i.“A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates.
ii.If a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim was made.
iii.However, claim for statutory benefits may be made after the time required by subsection 1 if the Claimant provides a full and satisfactory explanation for the delay in making the claim…”

11. I note that the Insurer has denied payment of statutory benefits in accordance with Section 6.13 of the Motor Accidents Injuries Act. The Insurer noted as follows in its internal review decision;

“The motor vehicle accident occurred on 18 August 2018. The 28 day time frame for the claim to be lodged expired on 15 September 2018. Your claim form was received on 20 March 2019 and it was determined that you were at fault in the motor accident. As you were determined to be at fault, you are only entitled to 26 weeks’ worth of statutory benefits of weekly payment. The 26 weeks expired on 16 February 2019, prior to the claim form being received, therefore no payment of statutory benefits of weekly payments has been made…”

I have determined that the Insurer is entitled to refuse payment of statutory benefits in accordance with Section 6.13 of the Motor Accidents Injuries Act 2017. Your claim was received more than 28 days after the date of the motor accident, therefore, weekly payments of statutory benefits are not payable in respect of any period before the claim is made.

12. A Claimant deemed at fault- as accepted in this accident, has an entitlement to 26 weeks’ worth of statutory benefits only.

13. The claim was received by QBE on the 20th of March 2019 which was outside the time frame of 28 days and outside the 26 week time frame.

MY FINDING

14. For the purposes of Section 6.13 the Insurer is entitled to refuse payments of weekly payments of statutory benefits to the Claimant AHA.

COSTS

15. The Claimant was self-represented and there was no application for costs so I do not allow costs.

Helen K. Wall
DRS Claims Assessor Dispute Resolution Services