Nature of the decision: Miscellaneous Claim Review on the rights of an Insurer to refuse payment of weekly payments of statutory benefits
Our reference: MA05/18
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(k) of the Motor Accident Injuries Act 2017 (the Act), about whether the Insurer is entitled to refuse payment of weekly payments of statutory benefits in accordance with s.6.13 of the Motor Accidents Injuries Act 2017.
- The parties at the telephone conference agreed on the following chronology:
i. The Claimant was involved in a motor vehicle accident on XXXXXXXX.
ii. The Claimant served on the Nominal Defendant their personal injury benefits from via email on XX March 2018.
iii. On XX March 2018, SIRA wrote to the Claimant advising them that they had received their claim form and that the matter had been allocated to the Insurance acting on behalf of the Nominal Defendant.
iv. The parties agree (although the document was not put before me), that on XX April 2018, the Insurer wrote to the Claimant advising them that the Insurer was unable to pay their wage loss benefits for the period of XX February 2018 to XX March 2018 on the basis that the Claimant's personal injury benefit form was not served within 28 days of the motor vehicle accident.
v. On XX April 2018, the Claimant requested an internal review of the Insurer's decision.
vi. On XX April 2018, the Insurer wrote to the Claimant and acknowledged receipt of their request for the internal review. On XX May 2018, the Insurer wrote to the Claimant advising them that the Insurer had determined that as their claim was not made within the 28 days' time limit, the Insurer was unable to make a payment of statutory benefits before the date that their claim was made.
vii. The Claimant has lodged the application before me to determine if the Claimant had made their claim within 28 days.
- The Claimant relies on the Interpretation Act 1987 NSW.
- At the telephone conference, the Insurer submitted that in their opinion the Interpretation Act does not apply to the Motor Accidents Injuries Act 2017 and if the claim form was not lodged within the 28 days as required by the Act, then the Insurer has no duty to pay weekly wages for the 28 days prior to that period - pursuant to s.6.13(2).
- Section 6.13 of the Motor Accidents Injuries Act 2017 states as follows:
- The parties agree that the Claimant was injured on the date of accident.
- The Claimant emailed their personal injury benefits form on XX March 2018.
- The Interpretation Act 1987 NSW states as follows at s.5 - 'Application of Act':
- Section 36 of the Interpretation Act 1987 notes as follows - 'Reckoning of Time':
(1) A claim for statutory benefits mist be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the date within which the claim must be made.
(2) If a claim for statutory beneifts 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 is made.
(1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act.
(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in the Act or in the Act or instrument concerned.
(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.
(2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of anything falls:
(a) on a Saturday or Sunday, or
(b) on a day that is a public holiday or bank holiday in the place in which the thing to be or may be done,
the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.
(3) If in any Act or instrument a period of time is prescribed or allowed for the doing of anything and a power is conferred on any person or body to extend the period of time:
(a) that power may be exercised, and
(b) if the exercise of that power depends on the making of an application for an extension of the period of time - such an application may be made,
after the period of time has expired.
- The Claimant in its correspondence to the Insurer dated XX June 2018, relying on the above sub-section noted as follows:
- Claimant's motor vehicle accident
- 28 days post-accident (not including date of accident), or, the last day of a period of time prescribed or allowed by the Motor Accidents Injuries Act, for the service of a personal injury benefits form
- The first day following that is not a Saturday or Sunday
- The Insurer replied to the above correspondence by letter dated XX June 2018 noting as follows:
- The Insurer notes that the matter had been referred to me to make a final determination on the issue.
"It remains the Insurers' position that entitlement to statutory benefits for any period prior to claim lodgement only applies to those claims received by the Insurer within the first 28 days in accordance with s.16.13(2) of the Motor Accidents Injuries Act (the Act)."
- I find that pursuant to s.36 of the Interpretation Act 1987 NSW - that the Claimant has made their claim within the 28 days as prescribed by s.6.13(2) of the Motor Accident Injuries Act 2017.
- I therefore find that the Insurer is not entitled to refuse payment of weekly payments of statutory benefits in accordance with s.6.13(2) of the Act.
- The parties agree that if the Claimant is successful in this application then it is entitled to costs. The parties agree that the costs is $1,600.00 plus GST, I therefore allows the Claimant its cost of $1,600.00 plus GST.
My determination of the Miscellaneous Claim is as follows
- For the purposes of section 6.13(2) the Insurer is not entitled to refuse payment of weekly payments of statutory benefits
- Effective Date: This determination takes effect on XX July 2018.
- Legal Costs: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,600.00 plus GST. This is consented to by the Insurer.
DRS Claims Assessor
Dispute Resolution Service