Icho v Allianz Australia Insurance Limited
[2024] NSWPICMR 8
•9 May 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Icho v Allianz Australia Insurance Limited [2024] NSWPICMR 8 |
CLAIMANT: | Merna Icho |
INSURER: | Allianz Australia Insurance Limited |
MERIT REVIEWER: | Elizabeth Medland |
DATE OF DECISION: | 9 May 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether statutory benefits payable under Division 3.3; insurer asserted that any loss of earnings from the date of commencement of planned maternity leave is not due to the motor accident; allegation that the claimant intended to return to work before the 12 months of unpaid leave provided by her employer; assertion that she would have returned to work following cessation of Centrelink Parental Leave Pay; Held – claimant would in all likelihood have returned to before 12 months largely due to financial necessity; claimant’s financial situation became tenuous at the cessation of Centrelink parental pay and that such situation would have occurred regardless of the occurrence of the motor accident and therefore she would have returned to work; claimant entitled to weekly payments of statutory benefits. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act2017, and is therefore a merit review uner Schedule 2(1)(a). The determination of the Personal Injury Commission is: 1. The revieweable decision is set aside. 2. The claimant is entitled to payments of weekly statutory benefits, paid in accordance with the provisions of Division 3.3 of the Motor Accident Injuries Act2017, from 29 January 2024. |
STATEMENT OF REASONS
INTRODUCTION
Ms Merna Icho (the claimant) has made a claim for statutory benefits following suffering injury as a result of a motor accident that occurred on 10 August 2023. The injuries sustained included a left distal humerus fracture.
A dispute has arisen between the parties as to the claimant’s entitlement to payments of weekly compensation.
Specifically, in a notice dated 15 November 2023 the insurer accepted liability for statutory benefits, however, asserted that because the claimant commenced maternity leave as of 21 August 2023, any loss of earnings from the date of commencement of her planned maternity leave is not accident related. The claimant disputed the decision and requested an internal review.
The insurer found the following in its internal review:
(a) the insurer accepts the claimant is an “earner” for the purposes of the Motor Accident Injuries Act 2017 (MAI Act);
(b) the insurer acknowledges that the claimant suffered injury as a result of the motor accident;
(c)
the claimant’s loss of earnings between 14 August 2023 and
1 September 2023 have been reimbursed by Allianz, and
(d)
the insurer is not satisfied that the claimant’s loss of earnings after
1 September 2023 is casually related to the injury arising from the accident.
Essentially, the claimant asserts that her intention was to return to work prior to her 12 month maternity period ceased. The insurer asserts the claimant is not entitled to statutory benefits during the whole 12 month period.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a determination of the dispute.
The matter has been allocated to me as a dispute between the parties as to the claimant’s entitlement to payments of weekly benefits pursuant to s 3.6(1) of the MAI Act. The dispute is deemed a merit review matter pursuant to Schedule 1, cl 1(a) of the MAI Act – the amount of statutory benefits that is payable under Division 3.3 (weekly payments of statutory benefits to injured persons).
I held a preliminary conference with the parties representatives on 22 March 2024. I noted that there was an absence of evidence from the claimant regarding her intentions in respect of her maternity leave. I made directions regarding the lodgement of a statement from the claimant and a response from the insurer.
A statement was subsequently lodged and further written submissions were lodged in reply on behalf of the insurer.
It was also confirmed at the preliminary conference that the only issue the parties request a determination on, relates to the claimant’s maternity leave, rather than an issue about physical capacity to return to work. My determination is therefore limited, effectively, to when the claimant would likely have returned to work following the birth of her child, but for the accident.
BACKGROUND
The claimant was born in 1990 and is currently 34 years of age.
The accident occurred on 10 August 2023.
As part of her medical treatment for injuries sustained, the claimant underwent surgery for her fracture on 14 August 2023, performed by orthopaedic surgeon, Dr Dave.
At the time of the motor accident the claimant was approximately 36 weeks pregnant.
She is employed in a full-time capacity as a Customer Claims Specialist with Johns Lyng Group.
The claimant is entitled to 12 months unpaid maternity leave from her employment.
It is suggested the claimant had intended to commence her maternity leave on
1 September 2023.
However, following the accident, the claimant commenced her maternity leave on
21 August 2023 and gave birth to her child on 24 August 2023.
The claimant had been in receipt of Centrelink Parental Leave Pay from
24 August 2023 until 27 December 2023, and then has been on unpaid maternity leave from her employer.
LEGISLATIVE FRAMEWORK
Section 3.6(1) of the MAI Act provides:
“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 first entitlement period.”
Section 3.6(1) of the MAI Act includes a similar provision for the second entitlement period.
Schedule 1, cl 3 of the MAI Act provides:
“(1) Loss of earnings means a loss incurred or likely to be incurred in a person’s income from personal exertion.
(2) A person’s income from personal exertion is:
(a) the amount that is the income of the person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, and
…”
Schedule 1, cl 8(1)(a) of the MAI Act provides the meaning of “post-accident earning capacity” as follows:
“for the first and second entitlement periods – the weekly amount that the person has the capacity to earn in the employment in which the person was engaged immediately before the motor accident, determined on the basis of the person’s fitness for work in that employment…”
DOCUMENTS
I have considered the documents included with the application and reply in addition to the claimant’s statement and further submissions of the insurer.
EVIDENCE
The claimant’s employer, Johns Lyng Group in a letter to the claimant dated
23 January 2024 acknowledges receipt of medical documentation. It notes that the claimant was then not fit to return to work. The employer states that it is a prerequisite for the claimant to obtain a medical clearance from her general practitioner or surgeon before she can resume her role.
Centrelink wrote to the claimant on 5 October 2023 and confirmed that Parental Leave Pay had been granted for the dates 24 August 2023 to 27 December 2023.
The material before me includes an email chain of correspondence between the claimant and the insurer.
The chain commences with an email from the claimant dated 4 January 2024 which notes that her Centrelink payments had ceased and she understood that the insurer would be paying her wages until she was fit to return to work. The insurer representative responds stating a certificate of fitness was required. It was also asked for the date the claimant anticipated going back to work. The claimant responds by stating: “I will go back to work in August when my maternity leave finishes.”
Following a number of other messages, on 15 January 2024 the claimant mentions to the insurer representative that she was behind on her rent and wanted to know when the payments would be arranged.
Claimant’s statement dated 2 April 2024
The claimant provides a history of the circumstances of the accident and her medical treatment and ongoing issues. Those issues include a requirement for assistance with with all areas of her life including self-care and domestic duties.
She notes that Dr Dave recommended the claimant undergo another procedure in January 2024 to remove some plates and screws. This was performed on
17 January 2024 and she has been undergoing physiotherapy since such time.
The claimant notes ongoing pain, stiffness and discomfort in his left arm. She notes that she cannot drive and cannot sit in front of a computer with her elbow bent for long periods. Difficulties are set out in respect of other activities of daily living.
In respect of her work, the claimant notes her duties are mostly office-based, but she is required to be onsite.
In respect of her intentions the claimant states: “once my Centrelink leave ceased, my intentions were to see how my health was faring and return to work when I felt up to it.”
She goes on to state: “my employer offers 12 months of unpaid maternity leave commencing from the birth of the child. I was advised by my employer that I could return at any time during those 12 months when I was ready.”
She states that she had never intended to take the entire 12 months as it was not financially feasible for her and her family.
The claimant states that she had a discussion with her manager in around June 2023 regarding her maternity leave wherein she stated that she wanted to take as much leave as she could but would likely return before the 12 months for financial reasons.
Following the accident, the claimant’s Centrelink payments ceased on
12 December 2023. She states that given that the payments ceased during the Christmas period, she discussed the situation with her partner and decided that she would remain on leave for the holiday period to spend time with her family and then attempt a return to work after 26 January 2024 because that would allow her to spend her birthday with her family as well.
The claimant states that leading up such time she had discussions with her employer, however, was advised by letter dated 23 January 2024 that she could not return to work as she was not medically fit. The claimant then states:
“I am keen to work as my family cannot sustain our expenses on just my partner’s income.
I have been aware that this would be the case since before going on maternity leave and always intended to return before the 12 months of unpaid leave expired.
Unfortunately, due to the accident-related injury to my left arm, I have been unable to be certified fit for work and have been unable to return to work as I intended.”
SUBMISSIONS
Claimant’s submissions dated 22 February 2024
The claimant rejects the insurer’s assertion that the claimant’s current loss of earnings is not related to the motor accident.
It is submitted that the claimant intended to return to her work from her maternity leave following the cessation of the Centrelink Parental Leave Pay. That date being
12 December 2023.
The claimant submits that she suffers from a total loss of earning capacity as a result of the injuries suffered in the motor accident.
Insurer’s submissions dated 7 March 2023
The insurer asserts that prior to the accident the claimant intended to take the full 12 months of unpaid maternity leave. Therefore, irrespective of the motor accident, she would not have been deriving an income from employment during the relevant periods.
The insurer disputes that the claimant has suffered a loss of earnings as a result of the injury sustained.
It is noted by the insurer that the claimant has failed to rely on any documents which substantiates her contention that she intended to return to work earlier than August 2024.
The insurer asserts that as a full-time Customer Claims Specialist, she would have needed to provide some sort of written indication of her intentions regarding her maternity leave so that her role could be filled “…whether internally or perhaps by way of a temporary contract, which is common.”
The insurer submits that the email to the insurer of 4 January 2024 indicated a clear intention to return to work once her unpaid maternity leave entitlement period ended in August 2024.
It is also submitted that there is nothing in the correspondence from the claimant’s employer of 23 January 2024 that indicated the claimant arranged or intended to return to work earlier than August 2024.
The insurer states that the claimant holds the evidentiary burden and she has failed to provide any objective evidence that her pre-accident intention was to return to work earlier than August 2024.
Insurer’s written submissions dated 9 April 2024
These submissions were lodged following receipt of the claimant’s statement.
The insurer maintains that there is no objective evidence of the claimant’s intention to return to work.
It is noted that the claimant acknowledges that the earliest she may have returned to work was after 26 January 2024. The insurer notes that the statement does not make the intention clear.
The insurer notes the claimant states that she is unfit to work but notes the certificate of fitness dated 23 January 2024 certifies the claimant as unfit until 23 February 2024 and also notes Dr Dave, surgeon had stated that after a month from the removal of plate and screws she could return to work in an office.
FINDINGS
The insurer submits that there is no objective evidence to support the claimant’s contention that she would have returned to work prior to the expiration of her 12 months of unpaid maternity leave, had the accident not occurred. Conversely, however, there is no objective evidence that the claimant’s intention was to return at the cessation of the 12 month period. Whilst the insurer points to the claimant’s email to the insurer set out above which states she will return to work in August 2024 when her maternity leave ceases, appears to be stated in the context of the claimant’s belief that her compensation payments would continue – which is stated in the initial message of the email chain.
That stated intention, which is made after the accident, is also said in a materially different context than had it been said prior to the accident. The claimant suffered a serious injury in the motor accident that has required surgery. I accept her evidence that she has ongoing difficulties with activities of daily living as a result. Such situation would alter the path of intention in respect of a return to work, particularly if the belief held by the claimant at the time is that she would continue to receive payments of weekly statutory benefits from the insurer (incorrect that assumption may have been).
What does appear clear, however, is that the claimant is experiencing some financial hardship due to her lack of income. This is evidenced by the claimant’s statement to the insurer representative via email in January 2024 that she was behind in her rent. It is also in keeping with the claimant making enquiries regarding a return to work in January 2024. I find that such situation, on the evidence, was very likely to be the same situation regardless of the motor accident. As such, I consider it more likely than not that the claimant would have returned to work.
The insurer’s assertion that the claimant would have had to have made arrangements regarding an early return to work prior to commencing maternity leave, is made without any actual basis. It is mere conjecture. Moreover, I accept the claimant’s evidence that she had discussed the situation with her manager in June 2023 and that she would continue with her maternity leave while it remained financially feasible.
I am sufficiently satisfied that on the evidence it is most likely that the claimant would have returned to work after 26 January 2024, if the accident had not occurred. Specifically, I find the first Monday after such date would be a logical start date, being 29 January 2024.
This accords with the claimant’s evidence set out in her statement, which I accept. I also accept that the claimant did not have a set intention on a specific date prior to the accident, but it was rather a matter of “wait and see” how long it was financially viable.
On the evidence, I am satisfied that the claimant’s financial situation became tenuous in January 2024 following cessation of the Centrelink payments. I further find that such situation would have been the case even if the accident did not occur.
It follows, therefore, that I find that the claimant is entitled to payment of weekly statutory benefits from the insurer from 29 January 2024, to be calculated in accordance with the provisions of Division 3.3 of the MAI Act.
COSTS
The claimant seeks an award of costs. The submissions refer to cl 2(3)(b)(ii) of Schedule 1 of the Motor Accident Injuries Regulation 2017 (Regulation). I note, however, that such clause is in respect of legal costs provided in connection with a review of a decision about any merit review by a Review Panel.
This matter does not involve a Merit Review Panel. It is a decision of a single Merit Reviewer.
The regulation does not make provision for regulated legal costs in respect of the merit review dispute before me. I therefore make no award for legal costs.
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