Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 64
24 August 2022
Welcome to the 64th edition of Sparke Helmore’s MAD Weekly.
The Personal Injury Commission (Commission) commenced on 1 March 2021 and, with it, the publication of the majority of decisions issued by the Commission.
To help you navigate the recent decisions of the Motor Accidents Division (MAD) of the Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see this week’s edition below.
All references to legislation are to the Motor Accident Injuries Act 2017 unless otherwise noted.
Commentary and analysis of trends will be provided on more substantive decisions by our CTP team and will be separately published when necessary.
Merit Review
Duong v AAI Limited t/as GIO [2022] NSWPICMR 46
Merit Reviewer: Terence O’Riain
MOTOR ACCIDENTS—Claimant’s legal costs—section 8.10—whether legal costs and expenses are reasonable and necessary
The costs in dispute related to a treatment dispute for two types of treatment that had been referred to the Commission. The dispute had been determined by Medical Assessor Herald, in addition to a minor injury dispute for six separate injuries.
The claimant sought the maximum regulated amount from the insurer. The insurer offered an amount of $207.52 plus GST (2 monetary units). The claimant disagreed, and indicated the costs sought were reasonable and necessary.
The insurer submitted that 2 monetary units was more appropriate as the claimant relied mainly upon information previously provided in the application for internal review and that the submissions were brief in relation to the treatment dispute. The insurer noted that there is no automatic entitlement to the maximum regulated amount, that consideration ought to be given to the amount of work the claimant solicitor undertook, and that the claimant solicitor demonstrated no legal expertise or identifiable effort exerted beyond advising the Commission of the dispute. It was also contended that the Medical Assessor’s determination that the treatment was not reasonable and necessary near identical to the internal review decision, demonstrating that the application lacked merit. The insurer highlighted that the claimant solicitor had not demonstrated why the available evidence would alter the dispute outcome.
Findings:
The Merit Reviewer determined that the insurer was to pay the maximum regulated amount of $1,660.16 plus GST in respect of the claimant’s legal costs.
The Merit Reviewer stated:
“The insurer’s submission that maximum costs may only be awarded in circumstances where the legal representative has put “significant and justified time and effort” into the application does not apply to the process required for injured persons engaging legal representation in statutory claims.
Before there is any identifiable effort exerted with respect to providing medical evidence and/or formulating arguments in support of a position, legal representatives perform considerable work to engage the claimant, advise, peruse documents, make claims and obtain instructions. I note there are two pages listing clinical notes and certificates, which would have been perused and advised on before obtaining instructions to dispute the insurer’s decisions in the tribunal…
It would discourage lawyers from providing legal services to claimants, if any work done prior to the commencement in the Commission could not be recovered or reduced based on arbitrary opinions of the work put into each matter. This could have the effect of increasing disputation because the quality of the initial internal review application could be substandard if left solely to the claimant and therefore be less likely to resolve or create unjust outcomes.”
Accordingly, the Merit Reviewer considered that in exercising his discretion to award the maximum regulated amount, he was promoting the object of the Act to encourage the early resolution of claims and the quick, cost effective and just resolution of disputes.
The reviewable decision was set aside.
Kwak v Insurance Australia Limited t/as NRMA [2022] NSWPICMR 44
Merit Reviewer: Maurice Castagnet
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculation of PAWE—whether statutory benefits paid by another CTP insurer are included in calculation of PAWE
The claimant made a claim for statutory benefits in relation to an accident. The insurer determined that the claimant’s PAWE was $380.83, which was affirmed upon internal review. The figure was based on the claimant’s income from his self-employment as a painter.
The claimant disagreed with this amount and contended that his PAWE should also include the weekly payments of statutory benefits that he had received under the Act from another CTP insurer. These benefits were received for loss of earnings from his self-employment as a result of his injuries sustained in an earlier accident.
The insurer submitted that these benefits were not income as they were not received from personal exertion.
There was no dispute that the claimant was an “earner” (and was self-employed during the eight weeks immediately preceding the accident), and that the claimant’s PAWE as an earner was to be calculated based on their income over the preceding 12 months. During that period, the claimant received weekly benefits from another insurer.
Findings:
The Merit Reviewer disagreed with the insurer that the weekly benefits from another insurer were not “income from personal exertion” as defined in Schedule 1, cls 3(1) and (2).
He noted that “loss of earnings” was defined by cl 3(1) as “a loss incurred or likely to be incurred in a person’s income from personal exertion”, and that “income from personal exertion”, included “business carried on by a person [alone]” as per cl 3(2)(b).
The Merit Reviewer considered the weekly benefits to be income from personal exertion as they were “proceeds of the business carried on by the claimant. They were made in substitution for, and represent, income earned from personal exertion”. It was noted that the payments were declared as income in his tax return, and not damages for loss of earning capacity.
The Merit Reviewer therefore determined that the claimant’s PAWE was $828.83 (which accounted for the weekly benefits from the other insurer) and varied the insurer’s decision.
