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AEN v CIC Allianz [2019] NSWDRS MR 117

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsTotal or partial loss of earning – weekly payments of statutory benefits – minor injury – voluntary leave and relocation – personal injury benefits – ongoing psychiatric injury – second entitlement period – major depression with melancholia – medical certificates
Legislation cited                    Motor Accidents Injury Act (NSW) ss 3.7, 6.5, 7.13(4), 7.23(1), Schedule 2(1)(a), Schedule 2(2)(d)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018
Cases cited

N/A

Text citedN/A
Parties AEN - Claimant
CIC Allianz - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

View the certificate

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

The Claim
Claimant AEN
Insurer CIC Allianz
Claim Number 37C000201
The Reviewable Decision
Reviewable decision-makerMarcus De Courtenay
Date of Reviewable decision27 February 2019
Nature of Reviewable decision Whether the Claimant has sustained a total or partial loss of earnings as a result of the injuries sustained in the motor vehicle accident pursuant to Section 3.7(1) of the Motor Accident Injuries Act 2017
The Merit Review
Our Reference 10087880
Merit Reviewer Leigh Davidson
Date of Merit Review Certificate 28 May 2019

Merit Reviewer's Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule
2(1)(a) of the Motor Accident Injuries Act 2017, about the amount of statutory benefits payable under Division 3.3.

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:
o  The Claimant, who is an earner injured as a result of the motor accident dated 17 March 2018 has suffered a total or partial loss of earnings as a result of the motor accident injuries is entitled to weekly payments of statutory benefits during the second entitlement period in accordance with Section 3.7(1) of the Act.

o  The amount of statutory benefits that is payable to the Claimant under Division 3.3 must conform to the requirements of Section 3.7(2) of the Act.

o  It is the function of the Dispute Resolution Service on merit review to arrive at the correct and preferable outcome in respect of the weeks covered by the reviewable decision that is referred for review. Accordingly, this determination has effect from 28 December 2018 to 18 March 2019.

A brief statement of my reasons for this determination are attached to this certificate.

Leigh Davidson
Merit Reviewer, Dispute Resolution Service

Reasons

Background

1.  There is a dispute between the Claimant, AEN and the Insurer about the amount of statutory benefits that is payable to the Claimant under Division 3.3 (weekly payments of statutory benefits to injured person’s) of the Motor Accidents Injuries Act (“the Act”).

2.  Most relevantly, the issue is whether the Claimant is entitled to weekly payments during the second entitlement period under Section 3.7 (1) of the Act.

3.  The subject accident occurred on 17 March 2018. The Claimant reportedly received weekly payments for the first 26 weeks following the accident, until there was a dispute about whether the Claimant sustained a minor injury as a result of the accident.

4.  This dispute was ultimately resolved by a referral of the medical assessment dispute to Assessor Friend, who on 23 November 2018 issued a Certificate under Section 7.23(1) determining that the Claimant sustained ‘Major Depression with Melancholia’, which is not a minor injury for the purposes of the Act.

5.  The Insurer submits that the Claimant’s benefits were re-instated in line with Assessor Friend’s determination.

6.  It appears that at some point throughout December 2018, the Claimant ceased working with the Department of Education and relocated to Queensland. The Claimant submits that “as a result of the Claimant’s physical injuries, stress, anxiety and depressed mood she left Sydney and moved to Queensland in hope of a more relaxed and less stressful lifestyle”. The Claimant recently advised that her last day of work was 21 December 2018.

7.  The Insurer issued a liability notice on 21 January 2019 denying liability for weekly payments from 28 December 2019 and ongoing. The Insurer was not satisfied that the Claimant’s loss of earnings was a result of the injury sustained in the accident, but as a result of her ‘voluntary leave and relocation to Queensland’. As such, the Insurer determined that the Claimant did not have an entitlement to weekly benefits under Section 3.7 (1) of the Act.

8.  The Claimant sought an internal review on 13 February 2019. She submitted that she was unable to work from 21 December 2018 as a result of her physical injuries, stress, anxiety and depressed mood, necessitating the move to Queensland in search of a more relaxed lifestyle.

9.  On 27 February 2019 the Insurer issued a certificate of determination of the internal review and statement of reasons. The Insurer affirmed the liability decision of 21 January 2019. The Insurer maintained its decision that:

a.  the Claimant was not suffering a total or partial loss of earnings as a result of the injuries from the motor accident, and

b.  As such the Claimant had no entitlements to weekly payments under Section 3.7(1) of the Act.

10.  The Claimant made an application to the Dispute Resolution Service (DRS) for a determination of the merit review matter, seeking a determination that the Insurer’s reviewable decision was incorrect while maintaining that the Claimant’s suffered a loss of earnings during the period in dispute as a result of the injuries suffered in the motor accident.

11.  On 26 April 2019, I held a teleconference with the parties noting that the Claimant had indicated in her Application that medical evidence was outstanding and further that the Insurer had indicated in its Reply that the period of dispute had changed.

12.  Both parties were afforded the opportunity to include additional materials and submissions. The Insurer confined the period of dispute for weekly payments, to a closed period starting from 28 December 2018 to 18 March 2019.

Documents and information

13.  I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submission

Claimant’s submissions

14.  The Claimant submits that as a result of her physical injuries, stress, anxiety and depressed mood she has been unable to work from 21 December 2018. She made the decision to move to Queensland in hope of a more relaxed lifestyle.

15.  She relies on the medical evidence served supporting her allegation regarding the ongoing psychological/psychiatric injury resulting from the motor accident. The Claimant seeks a determination that she has an entitlement to weekly payments of statutory benefits for the period of 21 December 2018 to 18 March 2019 pursuant to Section 3.7(1) of the Act.

Insurer’s submissions

16.  The Insurer provided submissions with the Reply form dated 10 April 2019, followed by further submissions dated 17 May 2019.

17.  The Insurer submits that the Claimant has no entitlement weekly payments of statutory benefits pursuant to Section 3.7(1) of the Act for the period of 28 December 2018 to 18 March 2019 on the basis that the Claimant’s move to Queensland was for personal reasons and not as a result of the injuries sustained in the motor accident and that she had full capacity to work during the period in dispute.

Legislation

18.  In conducting my review, I have considered the following legislation and guidelines:

a.  Motor Accident Injuries Act 2017 (NSW) (“the Act”)

b.  Motor Accident Guidelines effective 13 July 2018 (“the Guidelines”)

c.  Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

Reasons

19.   I have considered the documents provided in the application and the reply and any further information provided by the parties.

Preliminary Issue

20.   Schedule 2(1)(a) of the Act provides for a merit review dispute about the amount of statutory benefits payable under Division 3.3 of the Act as follows:

1  MERIT REVIEW MATTERS

The following matters are declared to be merit review matters for the purposes of Part 7:

(a) the amount of statutory benefits that is payable under section 3.4 (Statutory benefits for funeral expenses) or under Division 3.3 (Weekly payments of statutory benefits to injured persons)

21.   Section 3.7(1) of the Act falls within Division 3.3 of the Act. Section 3.7(1) states:

3.7 WEEKLY PAYMENTS DURING SECOND ENTITLEMENT PERIOD (WEEKS 14-78 AFTER MOTOR ACCIDENT)

(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the second entitlement period.

22.  To be able to determine the amount of statutory benefits payable under Division 3.3 and most relevantly under Section 3.7(1), I must first be satisfied whether the Claimant is an earner who is injured as a result of the motor accident and suffered a total or partial loss of earnings as a result of such injury.

23.  On the evidence and submissions available, the present merit review seeks a determination regarding the claimant’s entitlement to weekly payments in accordance with Section 3.7 of the Act. At times, the Insurer’s submissions briefly highlight, but do not fully canvas disagreement with the degree of impairment of the claimant’s earning capacity resulting from the injuries caused by the motor accident. Disputes about the degree of impairment of the injured person’s earning capacity are to be referred for an assessment and determination by a medical assessor in accordance with Schedule 2(2)(d) of the Act before damages are awarded.

The claimant's position

24.  The Claimant’s Application for Personal Injury Benefits dated 23 March 2018 details that the she sustained an injury to her head, forehead, arms and wrists, neck, shoulders, lower back, tailbone, both knees, bruising to the chest and anxiety.

25.  The majority of the medical evidence before me is consistent with the Claimant having ongoing physical and psychological issues as a result of the motor accident. It is evident from the Insurer’s submission, that the Insurer disputes the impact of the injuries on the Claimant’s ongoing capacity for employment.

26.  On 13 February 2019 the Claimant reported that:

“As a result of my physical injuries and my stress, anxiety and depressed mood, I have been unable to work since 21 December 2018. I left Sydney and moved to Queensland in hope of a more relaxed lifestyle. Consequently, I could not return to my employment on 7 January 2019 to complete my contract with the Department of Education NSW.”

27.   The evidence submitted by both parties shows that upon moving to Queensland the Claimant sought new treatment providers to aid with the ongoing management of her motor accident injuries.

28.   The Claimant subsequently secured employment effective of 18 March 2019.

29.   The Claimant maintains that her move to Queensland and the resulting loss of earnings during the period of 21 December 2018 to 18 March 2019 are as a result of the injuries sustained in the motor accident.

The insurer's position

30.   On 21 January 2019 the Insurer rejected the Claimant’s internal review application relying on Section 3.7(1) and Section 6.5 of the Act as the legislative basis of their position. In doing so the Insurer has asserted that the Claimant’s move to Queensland is inconsistent with her obligation to minimise loss.

31.   Section 6.5 of the Act places a duty on the Claimant to minimise loss in the following terms:

6.5 DUTY OF CLAIMANTS TO MINIMISE LOSS

(1)  A Claimant has a duty to take all reasonable steps to minimise loss caused by injury resulting from a motor accident.

(2)  This duty of a Claimant includes the following duties:

(a)  the duty to undergo reasonable and necessary treatment and care and do all such things as may be reasonable and necessary for the Claimant's rehabilitation,

(b)  the duty to commence or return to work as soon as reasonably practicable.

(3)  If a Claimant fails to comply with a duty arising under this section, the Insurer may, if authorised to do so by the Motor Accident Guidelines, suspend payment of

weekly payments of statutory benefits to the Claimant during any period that the failure to comply continues. The person forfeits their entitlement to weekly payments of statutory benefits during the period of any such suspension.

32.  In its Reply to the Claimant’s Application, the Insurer’s submitted:

“The Claimant has not provided any evidence to support the view that it was necessary for her to quit her employment and move to Brisbane for the treatment and care of her injuries resulting from the motor vehicle accident. This is not a position supported by any of her treating practitioners. This move was a personal choice of the Claimant’s”

33.  The Insurer contends that the Claimant’s move to Queensland and the resulting loss of earnings was not as a result of injuries sustained in the motor vehicle accident.

Finding

34.  The Insurer does not dispute that the Claimant sustained a non-minor injury as a result of the motor accident. As at 21 January 2019, the Insurer confirmed acceptance of Assessor Friend’s Assessment dated 23 November 2018 that the Claimant suffered a psychiatric injury as a result of the motor accident.

35.  The Insurer’s summary of the Claimant’s injuries downplay their severity. Assessor Friend opined that the Claimant developed ‘Major Depression with Melancholia’ as a result of the motor accident. The doctor reported that as a result of the motor accident injury the Claimant suffered from symptoms of tearfulness; loss of energy, motivation and appetite; social withdrawal; early morning awakening, waking between 2.00 and 3.00 am; loss of interest in cleaning and cooking; and weight loss of 8 kg.

36.  The Insurer has not served any evidence to support a finding that the Claimant was not injured as a result of the motor accident. The Insurer summarises a number of medical certificates by the Claimant’s general practitioners from Sydney and Brisbane. For the purposes of this determination, I do not propose to summarise all of the evidence relied upon by the parties. Largely, the general practitioners provide differing opinions of the Claimant’s overall level of capacity for work during the period in dispute. Overall, the certificates are consistent in diagnosing the Claimant to have suffered multiple injuries as a result of the motor accident occurring on 17 March 2018 and being unable to return to her pre-injury duties as a result of the injuries sustained in the motor accident.

37.  I acknowledge that Dr Wong, who is the Claimant’s new general practitioner in Brisbane, provided differing assessments of the Claimant’s capacity for fitness for work during the period in dispute. The relevant certificates are briefly noted as follows:

a.  Certificate dated 4 February 2019: *Version 1 (A3)

Dr Wong did not certify the Claimant to be fit for pre-injury duties, but certified that she has capacity for some type of work from January 2019 to March 2019 (hours not specified). Restrictions on the Claimant’s ‘capacity for activities’ included a lifting and carrying capacity restriction of up to 2 kilograms and a sitting tolerance of 30 minutes.

b.  Certificate dated 4 February 2019: *Version 2 (R1)

Dr Wong did not certify the Claimant to be fit for pre-injury duties, but certified that she has capacity for some type of work from 19 January 2019 to 31 March 2019 (8 hours a day and 5 days a week). Restrictions on the Claimant’s ‘capacity for activities included a lifting and carrying capacity restriction of up to 2 kilograms and a sitting tolerance of 30 minutes.

c.    Certificate dated 11 March 2019 (A9)

Dr Wong did not certify the Claimant to be fit for pre-injury duties, but certified that she has capacity for some type of work from 4 March 2019 to 11 March 2019 (hours not specified). Restrictions on the Claimant’s ‘capacity for activities included a lifting and carrying capacity restriction of up to 2 kilograms and a sitting tolerance of 30 minutes

d.    Certificate dated 1 May 2019

Dr Wong did not certify the Claimant to be fit for pre-injury duties, but certified that she has a reduced capacity to work from 18 March 2019 to 3 May 2019 and no work capacity for any employment from 1 January 2019 to 17 March 2019. I observe that this certificate was obtained after the initial teleconference where the insurer had indicated that additional medical evidence covering the dispute period would likely lead to a resolution of the merit review dispute.

38.  The Claimant also provided 2 medical certificates from Dr Chiu, who was the Claimant’s treating general practitioner in Sydney, dated 28 December 2018. Dr Chiu certified that the Claimant was not fit for pre-injury duties and furthermore had no work capacity from 29 December 2018 to 31 January 2019.

39.  The Insurer points out the inconsistencies in Dr Wong’s earlier certificates (i.e. Version 1 (A3) and Version 2 (R2) dated 4 February 2019) to the most recent certificate dated 1 May 2019 and submits that the latest certificate should be disregarded in its entirety due to inconsistencies. The insurer makes no additional submissions in relation to the remainder of Dr Wong’s certificates or to Dr Chiu’s certificate of fitness for the relevant period.

40.  The Insurer submits that the Claimant had full capacity for work during the period in dispute. The Insurer also submits that I ought to be satisfied that the Claimant had no entitlement to weekly payments pursuant to Section 3.7(1) of the Act for the period 28 December 2018 to 18 March 2019. These propositions are not consistent with the evidence relied upon by the insurer.

41.  From my review of the evidence available and the submission of the Claimant and the Insurer, I am satisfied that the Claimant is entitled to weekly payments during the period of 28 December to 18 March 2019. The medical evidence when read as a whole supports a finding that the Claimant suffered a loss of earnings as a result of the injuries sustained in the motor accident.

42.  The Insurer’s assertion that the Claimant failed to mitigate her loss by moving to Queensland is negated by the evidence relied on by the Insurer, namely the Allied Health Recovery Request dated 13 January 2019, 5 February 2019 and 8 April 2019. The Request dated 13 January 2019 clearly outlines the Claimant’s treatment goals, including ongoing attempts to find suitable jobs consistent with her physical functional capacity. The Requests dated 5 February 2019 and 8 April 2019 also outline the Claimant’s actions aimed at minimising her loss in looking for and eventually securing an alternative employment, notwithstanding the diagnosis of ‘Major Depression with Melancholia’.

43.  The Claimant has clearly communicated to the Insurer on several instances that her move to Queensland was an attempt to obtain a more relaxed lifestyle. Noting that the Claimant has been diagnosed with an ongoing psychiatric injury by a number of medical practitioners, including DRS Assessor Paul Friend, the fact that she moved to Queensland is not inconsistent with a need to implement measures to reduce the cause of her ongoing symptoms related to the injuries resulting from the motor accident.

44.  I am satisfied that the Claimant has suffered a total or partial loss of earnings as a result of the motor accident injuries for the period of the dispute.

Period of dDispute

45.  At the teleconference held on 26 April 2019, the parties agreed that the period of dispute was 28 December 2018 to 18 March 2019.

46.  The Claimant’s supplementary submissions dated 7 May 2019 seek to extend the period of dispute to 21 December 2018 to 18 March 2019, as her last date of employment in Sydney was 21 December 2018.

47.  Considering that Claimant’s entitlement to weekly payments in the period 21 December 2019 to 27 December 2019 is not disputed by the Insurer, I reject the Claimant’s submission on this point and make no further determination in relation to it.

The amount of statutory benefits payable under Division 3.3

48.  Neither the Claimant or the Insurer has provided any evidence or submission regarding the actual disputed amount of statutory benefits payable under Division 3.3.

49.  Accordingly, I am not in a position to make a determination in relation to the amount of statutory benefits payable to the Claimant under Section 3.7(1) of the Act.

50.  The most just and expeditious manner of determining the amount payable to the Claimant will be to set aside the reviewable decision with a direction that the amount payable to the Claimant under Division 3.3 must conform to the requirements of Section 3.7(2) of the Act.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:
o   The Claimant, who is an earner injured as a result of the motor accident dated 17 March 2018 has suffered a total or partial loss of earnings as a result of the motor accident injuries is entitled to weekly payments of statutory benefits during the second entitlement period in accordance with Section 3.7(1) of the Act.

o   The amount of statutory benefits that is payable to the Claimant under Division 3.3 must conform to the requirements of Section 3.7(2) of the Act.

o   Effective date: It is the function of the Dispute Resolution Service on merit review to arrive at the correct and preferable outcome in respect of the weeks covered by the reviewable decision that is referred for review. Accordingly, this determination has effect from 28 December 2018 to 18 March 2019.

Leigh Davidson
Merit Reviewer, Dispute Resolution Service