Procedural Direction MA2 – Merit review

Introduction

1.    This Procedural Direction applies to proceedings commenced under Division 7.4 of Part 7 of the Motor Accident Injuries Act 2017 (the 2017 Act). Part 12 of the Personal Injury Commission Rules 2021 (the PIC Rules) applies to the commencement and resolution of these proceedings.

2.    This Procedural Direction provides procedural information in respect of a dispute that concerns an insurer’s decision about a merit review matter.

Preliminary

3.   This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

4.   The President, a member or merit reviewer before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

5.    Nothing in this Procedural Direction prevents the President, a member or merit reviewer directing a party to take any appropriate step in proceedings.

6.    This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the PIC Rules.

Applicable legislation and rules

7.    Parties should be familiar with the following provisions:

(a)   Part 7, Division 7.4 of the 2017 Act

(b)   Schedule 2 of the 2017 Act, and

(c)   Part 12 of the PIC Rules.

Merit review matters

8.    Section 7.12 of the 2017 Act provides that a claimant may apply for a merit review of a decision of an insurer about a merit review matter (a ‘reviewable decision’).

9.    A merit review matter is defined in section 7.10 of the 2017 Act as a matter declared by Schedule 2 of the 2017 Act to be a merit review matter.

Commencement and reply

10.  Proceedings may be commenced by a claimant by lodging an application in the form approved by the President and within the timeframe set out in the 2017 Act and rule 115(3) of the PIC Rules. The Commission may decline an application for merit review if it is not made within the required timeframe.

11.  The application must comply with:

(a)   all requirements specified in any approved application form, and

(b)   all requirements specified in any approved online application process through the Commission’s Electronic Case Management system.

12.  All relevant supporting documentation must be attached to the application, and must be lodged as an indexed and paginated bundle.

13.  A merit review application must include details of:

(a)   the alternative decision sought in the merit review

(b)   issues under review – the elements of the original decision that the party wishes to be reviewed

(c)   the reasons the decision should be changed

(d)   any additional documentation or materials that the party considers relevant to a review of the decision, and

(e)   any regulated costs sought.

14.  Documents attached to an application must be relevant to the real issues in the proceedings.

15.  The respondent may lodge a reply to the application within 14 days of being served with the application.

16. When a reply is lodged, all relevant supporting documentation must be attached to the reply, and must be lodged as an indexed and paginated bundle.

17.  The reply must include:

(a)   the decision of the insurer that is referred for merit review, including statement of reasons and supporting documents

(b)   the response of the insurer to the alternative decision sought in the merit review application

(c)   the response of the insurer to the reasons the claimant believes the decision should be changed, and

(d)   the response of the insurer to any regulated costs sought (if applicable).

18.  Documents attached to an application must be relevant to the real issues in the proceedings.

19.  If the rules in relation to the commencement or conduct of merit review proceedings are not complied with, the Commission may set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings, in accordance with rule 8 of the PIC Rules.

Allocation and deferral

20.  As soon as practicable on receipt of submissions in reply, or the expiration of the 14-day reply period, whichever occurs first, the matter will be reviewed by the Commission for allocation to a merit reviewer for determination. The Commission will advise the parties of the merit reviewer that has been allocated to conduct the merit review matter.

21.  The allocation of an application may be deferred for a period of time that the Commission considers appropriate in the following circumstances:

(a)   further information or documentation has been requested;

(b)   there are other claims or issues in dispute or likely to be in dispute which would more conveniently be determined at the same time;

(c)   if the Commission is satisfied that the matter may be resolved by the parties and to allow the parties an opportunity to settle the claim;

(d)   the issues in dispute involve medical disputes which require a medical assessment, and that medical assessment has not occurred;

(e)   the claimant’s injury has not sufficiently recovered to enable the claim to be quantified having regard to any medical evidence attached to the application or reply, or

(f)    if there are other good reasons to defer the allocation of the application.

Applying for a different merit reviewer

22.  Either party may apply to the President in writing to have the application reallocated to a different merit reviewer on the grounds that the merit reviewer has a conflict of interest. A request for reallocation must be made within 7 days of receiving the notification of allocation of the matter and include submissions and reasons as to why the party is of the view that the merit reviewer should not determine the dispute.

23.  The party seeking reallocation must provide a copy of the request for reallocation and the submissions in support to the other parties to the dispute.

24.  The President will refer the application for re-allocation to the merit reviewer to whom the application has been allocated. If the merit reviewer determines that it is not appropriate for them to determine the application or dispute, the merit reviewer will notify the parties and the matter will be reallocated to a different merit reviewer.

Conduct of merit review proceedings

25.  In accordance with rule 116 the President and/or merit reviewer may determine the procedure for merit review proceedings. The merit reviewer may inquire into any matter relevant to the issues in dispute.

26.  The merit review must be dealt with in the way that best supports the objects of the enabling legislation and the PIC Act, given the facts and circumstances of the particular claim and the particular merit review, which may include undertaking the review on the papers, using online conferences (via audio or audio-visual link) or face-to-face meetings as appropriate.

27.  The merit reviewer must act with as little formality as the circumstances of the claim permit and according to equity, good conscience and the substantial merits of the matter, without regard to technicalities and legal forms.

28.  The merit reviewer must ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined.

29.  In conducting the merit review, the merit reviewer may consider material that was not provided to the original decision-maker.

30.  The merit reviewer is required to decide what the correct and preferable decision is, having regard to the material before them, including any relevant factual material, and any applicable written or unwritten law, under section 7.13(1) of the 2017 Act.

Merit review determinations

31.  The merit reviewer is to issue the parties with a certificate as to their determination, including a brief statement of reasons for the determination, under section 7.13(4) of the 2017 Act.

Assessment of legal costs

32.  A merit reviewer may include in the certificate as to the determination of a merit review an assessment of the claimant’s costs in the matter, including costs for legal services and fees for medico-legal services, under section 7.13A of the 2017 Act. However, only a member can permit payment of legal costs outside the amounts permitted by the Regulations, under section 8.10(4) of the 2017 Act.

33.  In statutory benefits costs disputes where no other merit review matter is before the merit reviewer:

(a)   A dispute about the legal costs and other costs and expenses incurred by the claimant in a statutory benefits claim may be referred to be dealt with by a merit reviewer as to whether the costs and expenses incurred by the claimant are reasonable and necessary under section 8.10(1) and Schedule 2, clause 1(aa) of the 2017 Act.

(b)   A dispute about the apportionment of legal costs between two Australian legal practitioners, in relation to a statutory benefits claim, may be referred to be dealt with by a merit reviewer, under Part 6, Division 2, clause 22(4)(a) of the Motor Accidents Injuries Regulation 2017.