1. The claimant has failed to produce a certificate of capacity for the period

20 October 2023 to 29 May 2024. 2. For the reasons provided, the insurer does not have to continue weekly payments for the period 20 October 2023 to 29 May 2024 until a certificate of capacity is served by the claimant or a notice a suspension is served by the insurer.

1. The claimant alleges sustaining injuries in a motor vehicle accident which occurred on 23 August 2023. It was a single car accident. The road was wet and in the course of driving his car along the City West Link, the claimant lost control, crossed over onto the other side of the road and crashed. The claimant has not distributed fault for the accident.
2. The claimant made an application for payment of weekly benefits.
3. In his application for personal injury benefits (APIB) dated 28 August 2023, the claimant stated that he was a self-employed cleaner at the time the subject accident occurred. He indicated he was earning $700 weekly in this employment. The insurer understands and says that the claimant was mostly paid in cash for this work.
4. The insurer accepts that the claimant was an "earner" within the meaning of sch 1 cl 2(a) of the Motor Accident Injuries Act 2017 (Act). The insurer's calculation of the claimant's pre- accident weekly earnings (PAWE) has not been disputed.
5. The dispute arises because the insurer cannot be satisfied that the claimant incurred a loss of earnings/capacity as a result of injuries sustained in the subject accident from 20 October 2023 to 29 May 2024.
6. While a claim was made on 28 August 2023 for statutory benefits, the insurer did not commence payment until 12 June 2024, after the disputed period of 20 October 2023 to 29 May 2024.
7. A limited number of certificates of capacity/fitness have been provided. These are noted as follows;

1. No certificates of capacity have been provided by the claimant for the period

20 October 2023 to 29 May 2024.The claimant says that this was a time after his surgery and he was not capable of working however, there is no documentary evidence of this. Despite several assurances by the claimant, at teleconferences, that he would obtain the necessary certificates, none have been forthcoming. 2. The insurer provided the joint bundle of documents, including its submissions. No submissions nor any documents have been produced by the claimant.

1. The claimant is self-represented.
2. By email dated 15 July 2024, the insurer explained the following to the claimant:

(a) the claimant's claim was submitted in August 2023;

(b) despite the insurer's efforts, the claimant was not able to be contacted, and the claim was closed in January 2024;

(c) the insurer received an initial certificate of capacity which confirmed the claimant was unfit for work for two weeks. The next certificate of capacity was received in June 2024 and covered the period from 30 May 2024 to

30 June 2024;

(d) as the insurer determined that the claimant was at fault for the subject accident, his entitlement period ended after 52 weeks, and

(e) without medical evidence, earning records, or certificates of capacity, the insurer was not in a position to pay for a five month gap period.

1. The insurer says that for the period 8 September 2023 to 29 May 2024 the claimant was not covered by any certificates of capacity. The disputed period commences on 20 October 2023 as, during the period from 8 September 2023 to 19 October 2023, the insurer accepted that the medical documentation supported a temporary period of incapacity following the fixation of the claimant's right midshaft humerus fracture.
2. The insurer submits that it was only obliged to provide statutory benefits for the periods that were covered by certificates up to 52 weeks, noting the position taken regarding fault for the accident.
3. In the absence of certificates of capacity/fitness covering the period 20 October 2023 to 29 May 2024, the insurer submits a determination ought to be made that the claimant was not entitled to weekly payments during that same period.
4. Section 3.15 of the Act deals with the requirements for evidence for fitness for work. Section 3.15 states:

"(1) An injured person must provide to the insurer -

(a) certificates of fitness for work in accordance with this section in respect of the period in respect of which the person is entitled to weekly payments of statutory benefits under this Division...

(5) A certificate of fitness for work is of no effect to the extent that it relates to a period that is more than 90 days before the certificate is provided by the injured person to the insurer.

(6) An insurer is not required to make weekly payments of statutory benefits to which a person is entitled to under this Division until the person has complied with subsection (1).

(7) If a person fails to comply with a requirement under this section within 7 days, or another period prescribed by the regulations, after the requirement is communicated to the person by the insurer, the insurer may, subject to the Motor Accident Guidelines, suspend payment of weekly payments of statutory benefits to the person under this Division for the period the failure to comply continues.

(8) The person forfeits the person's entitlement to weekly payments of statutory benefits during the period of a suspension."

1. The insurer has also noted the Motor Accident Guidelines (Guidelines) also address the claimant's responsibilities for ongoing weekly payments, and a claimant's responsibilities to provide evidence of fitness for work. These issues are dealt with at cls 4.67 to 4.69 as follows:

"4.67 A claimant must provide to the insurer a certificate of fitness for work to be eligible for weekly payments. The required form of a certificate given under section 3.15(3) of the Act is a Certificate of Fitness (including the declaration of employment).

4.68 The first certificate of fitness for work must be given by the claimant's treating medical practitioner.

• 4.69 A second or subsequent certificate of fitness must be in a form approved by the Authority and given by:

(a) a medical practitioner, or

(b) if the injured person is receiving medical or related treatment for the injury by a physiotherapist or psychologist who is appropriately qualified - the physiotherapist or psychologist."

1. The relevant provisions in the Guidelines include the following under the heading "non-compliance with providing evidence of fitness for work":

"4.61 Before an insurer can suspend weekly payments for failure of the claimant to comply with requirements for evidence as to fitness for work, the insurer must:

(a) contact the claimant (via the claimant's preferred method of communication) to ensure that the claimant is aware of their duty to provide this evidence

(b) clearly state to the claimant the consequences of not providing the evidence

(c) provide the claimant with a reasonable time within which to comply

(d) if the claimant is a participant in the Lifetime Care & Support Scheme, the insurer must contact the Lifetime Care & Support Authority of NSW ...

(e) provide the claimant with contact details of the Authority.

4.62 If the claimant continues to fail to comply without a reasonable excuse, a suspension notice giving the claimant seven calendar days to comply must be sent in writing.

4.63 The suspension notice must clearly state the insurer's reasons for suspending weekly payments, actions the claimant must take to avoid suspension of their weekly payments and the claimant's rights of review. A copy of this notice must be provided to the claimant's legal representative where the claimant is legally represented."

What is required before payments can be suspended?

1. In Leydon v Insurance Australia Limited t/as NRMA Insurance, Senior Member Williams dealt with a dispute about the suspension of benefits and the lawfulness of the notification from the insurer. He said (emphasis added):

"[42] In short, cl 4.58 [now 4.62] of the Guidelines required NRMA to provide Mr Leydon with a valid suspension notice, after it had complied with cl 4.57 [now 4.61] of the Guidelines, and after Mr Leydon had failed to comply with the requirement to provide a certificate of fitness that satisfied s 3.15."

1. There is a clear four step process which an insurer must follow before suspending payments:

(a) the claimant must fail to comply with s 3.15(1) and must not have provided the requisite certificate after being notified in accordance with s 3.15(7);

(b) the notification must comply with cl 4.61, that is the claimant must be contacted and advised of the breach, the consequences for continued failure and provide a time to comply (at least seven days in accordance with s 3.15(7));

(c) the insurer must, when the failure continues, then issue a suspension notice that complies with cl 4.62, and must

(d) wait seven days before suspending payments.

1. Weekly payments for the non-disputed periods were first made on 12 June 2024. This is a considerable time after the disputed period. The insurer submits that the claimant has not consistently obtained or supplied it with certificates of capacity. The insurer has confirmed that the period of 8 September 2023 to 29 May 2024, being 8 months and 21 days, was not covered by any certificates of capacity. The insurer submits that in the absence of certificates of capacity/fitness covering the period 20 October 2023 to 29 May 2024, a determination ought to be made that the claimant was not entitled to payments during that same period.

Did the insurer comply with cl 4.61 of the Guidelines?

1. Clause 4.61 of the Guidelines provides that "before an insurer can suspend weekly payments ... the insurer must ..." do at least three things:

(a) contact the claimant which is "to ensure he is aware of his duty" to provide the certificate;

(b) clearly explain the consequences, and

(c) provide a reasonable time to comply.

1. After those three things have been done, cl 4.62 provides for a suspension notice to be given and for the claimant to have further time (seven calendar days) to comply.
2. Initially, the insurer had not been able to comply with the suspension payment provisions as it lost contact with the claimant and was unable to clearly explain the consequences and provide a reasonable time to comply.
3. Actual contact is required because the Guidelines make it clear this contact is required "to ensure" that the claimant was "aware of his duty". The claimant was not aware of the duty because he had not been contacted. The claimant has now been made aware, informally at teleconferences of the need for outstanding certificates of currency to be provided but to date, has not provided this. As far as I am aware though, no formal written notice about this has been provided by the insurer.

Is there a discretion to suspend payments under s 3.15(7)?

1. Section 3.15(7) provides that after the injured person has failed to provide a Certificate of Fitness and seven days after this has been communicated with the claimant, "the insurer may ... suspend payment" (emphasis added).
2. The wording of this part of the section does not say "must" or "should" or otherwise suggest it is mandatory for payments to be suspended in certain circumstances.
3. The word "may" in the context of the whole of the section clearly involves a discretion. The insurer was not required to suspend payments because of the absence of an updated certificate.

1. Section 3.15(7) provides that the insurer's discretion to suspend payment is "subject to the Motor Accident Guidelines".
2. Clause 4.62 in those Guidelines says that "if a claimant continues to fail to comply without a reasonable excuse, a suspension notice giving the claimant seven calendar days to comply must be sent in writing" (emphasis added).
3. The insurer did not commence to make any payments until 12 June 2024. This was only for the period from 28 August 2023 to 19 October 2023. In the intervening period up to 12 June 2024 when the first payment was made, the insurer was undertaking various investigations and enquiries to confirm firstly, whether the claimant was an earner and secondly, if so, the amount of his loss of earnings and thirdly, the insurer awaited provision of certificates of capacity from 20 October 2023.
4. It was not until 12 July 2024 or thereabouts that correspondence ensued between the insurer and the claimant concerning the missing certificates of capacity. Since that time, despite many requests by the insurer, the claimant has failed to supply the insurer with certificates of capacity for that period of 20 October 2023 to 29 May 2024.
5. The insurer submits that in the absence of certificates of capacity/fitness, covering the period 20 October 2023 to 29 May 2024, a determination ought to be made that the claimant was not entitled to weekly payments during that period.
6. The insurer submits that as weekly payments were not formally commenced prior to the disputed period, then a notice of suspension was not required. However, the insurer, by making the first payment on 12 June 2024 has, in my finding, conceded that some payments ought to be made. It is clear that the claimant must provide certificates of capacity for ongoing payments and in this case, the claimant has not done this. The problem though is that weekly payments should continue until a notice of suspension is given. No such suspension notice has been provided by the insurer.
7. I do not know if there has been an internal review of the insurer's decision. I do not know if the claimant has asked for this.
8. Section 3.15 (7) enables the insurer to suspend weekly payments if there is a failure to provide a certificate of fitness if it is not provided within seven days after the requirement is communicated.
9. In this situation there is a failure to comply with the provisions of the Act in the first instance by the claimant and secondly by the insurer. Regarding the claimant, he has consistently failed to provide a certificate of capacity/fitness for the period

20 October 2023 to 29 May 2024. The Act says that certificates of capacity must be provided. 10. It is my finding that presently, the claimant is entitled to payment of weekly benefits but as he has not provided a certificate of capacity, no payment can be made. The insurer however, has not provided a notice of suspension and until that is done, the claimant will be entitled to payments. 11. I can make no determination for payment in this matter presently as the claimant has failed to comply with the requirements of the Act. Once he has done that then he will be entitled to payments unless a compliant notice or suspension is served by the insurer. The insurer however, is liable to make those payments if a valid certificate of capacity is served until such time as a notice of suspension is served. 12. The claimant failed to attend the last two teleconferences fixed by me. At the most recent teleconference on 16 April 2025, the insurer confirmed that the dispute was suitable to be assessed on the papers. I am proceeding on this basis although I was not able to ask the claimant about this due to his non-attendances. 13. To receive statutory benefits for which the claimant is entitled, s 3.15 of the Act states that the injured person must provide certificates of fitness in respect of the period for which the person is entitled to weekly payments. 14. The claimant had surgery as a result of the injuries suffered by him in the accident. The insurer took into account this surgery and a period of recovery and rehabilitation. Without the benefit of any certificate or certificates of capacity/fitness, the insurer made payments representative of the period from 8 September 2023 to 19 October 2023, at its discretion. However, it was not until 30 May 2024 that a new certificate of capacity was provided. 15. The claimant, despite informing me that he would obtain the necessary certificate or certificates from his surgeon, has failed to do this and no reason has been provided about this. 16. I am not of the understanding that the insurer has suspended any payments, it has just not made any payments because the claimant has not provided any certificate of capacity evidencing his incapacity for the dispute. 17. It is my finding that it was reasonable for the insurer, having allowed a period of rehabilitation following the surgery, to 19 October 2023, to expect certificates of capacity thereafter to verify any incapacity on the part of the claimant to work. Despite the claimant knowing that he must provide the certificates, he has failed to do so. 18. As the claimant has not provided a certificate of fitness for work for the period

20 October 2023 to 29 May 2024, there is no compulsion on the insurer to make any payments for that period. I am satisfied that the insurer has conveyed to the claimant the necessity to produce a certificate of capacity for this period, but the claimant has failed to do this. 19. The insurer has not suspended the payment of statutory benefits but has informally communicated to the claimant that he needed to provide a certificate of capacity. Until a notice of suspension is served, the issue of payments might be reactivated by the claimant.

1. The claimant has failed to produce a certificate of capacity for the period

20 October 2023 to 29 May 2024. 2. For the reasons provided, the insurer does not have to continue weekly payments for the period 20 October 2023 to 29 May 2024 until a certificate of capacity is served by the claimant or a notice a suspension is served by the insurer.