Kraljevic v Cic Allianz Insurance Limited
[2024] NSWPICMR 1
•8 January 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Kraljevic v CIC Allianz Insurance Limited [2024] NSWPICMR 1 |
| CLAIMANT: | Blagica Kraljevic |
| INSURER: | CIC Allianz |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 8 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; whether loss of earning as a result of the injury resulting from the motor accident; weekly statutory benefits in first entitlement period, section 3.6; duty to act in good faith, section 6.23; validity of the claim and whether any part of the claim may be fraudulent, section 6.24, section 6; Held – the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION 1. The reviewable decision is affirmed. 2. It is recommended that the insurer conduct further investigation into the validity of the claim. |
STATEMENT OF REASONS
PROCEDURAL NOTE
This decision raises questions about the validity of the claim and whether any part of the claim may be fraudulent. Given the seriousness of such an issue this decision was provided to the parties in draft form on 11 December 2023 and the parties given an opportunity to respond. The following message was sent to the parties with the draft decision:
“Please find attached DRAFT decision not for publication at this stage. The parties' attention is drawn to the matters raised in paragraphs 12 to 32 and 67 in the draft decision. The parties are provided with an opportunity to respond within 14 days. Any response from either party is required by no later than 4:00PM on 22 December 2023. If there is no response and the application is not withdrawn by 4.00PM on 22 December 2023, the decision will be finalised and issued as a final decision immediately thereafter, without further notice to the parties.”
Pursuant to the above, the parties were given 14 days, until 4.00pm on 22 December 2023, to provide any response to the draft decision before a final decision is issued.
Shortly after provision of the draft decision to the parties Blagica Kraljevic (the claimant) made her two business TikTok accounts private. Stories from the TikTok accounts shared (and which were previously saved) to the claimant’s business Facebook and Instagram accounts were also deleted. These stories showed the claimant’s business activity post-accident, including three days after the accident, on 27 May 2023 the claimant’s mobile pamper event business provided services for an 8th birthday spa pamper party for “Maddie” and most recently, on 8 December 2023 the claimant’s business provided services for a 10th birthday spa pamper party for “Billie”. Videos taken at these events were posted along with other posts about the success of the events. Whilst it appears the claimant may use subcontractors from time to time (or possibly has some employees), social media posts, including videos and Google reviews personally thanking the claimant for the services she personally provided at various events/bookings, confirm the claimant physically attended various events/bookings conducted by her business post-accident and personally carried out services at those events/bookings, in addition to managing the day-to-day business operations.
Neither party provided a response to the draft decision. On 22 December 2023 the case officer contacted the claimant by telephone at which time the claimant confirmed she had nothing further to add. It might be inferred from this that the claimant does not dispute the self-employed business activities she has engaged in post-accident outlined in the draft decision.
As neither party has provided a response to the draft decision and the claimant has confirmed by telephone that she has nothing further to add, this decision is now finalised.
INTRODUCTION
There is a dispute between the claimant and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 24 May 2023.
On 30 May 2023 the claimant made an application for personal injury benefits.
On 21 June 2023 the insurer determined that the claimant did not suffer a loss of earnings as a result of the motor accident and therefore the claimant was not entitled to payment of weekly statutory benefits under s 3.6 of the MAI Act.
The claimant applied for an internal review of the insurer’s decision dated 21 June 2023.
On 1 November 2023 the insurer issued their internal review decision in which the insurer affirmed their original decision.
The claimant has requested a merit review of the insurer’s internal review decision dated 1 November 2023 (the Application).
SUBMISSIONS
The claimant submits at the time of the accident she was employed and has, as a result of the accident, suffered a loss of earnings. The claimant contends she was also in the process of obtaining other employment at the time of the accident but unable to take up other employment as a result of injuries sustained in the motor accident.
The claimant contends she has no capacity to look for work due to her physiotherapy program, which requires her to attend physiotherapy sessions twice a week and exercise at home three to four times a day. It also appears from the claimant’s submissions that the claimant contends providing care to her two young children has also impeded her ability to look for work since the accident.
The claimant contends but for the accident she would presently be engaged in employment but is not.
The insurer submits that the claimant has not suffered a loss of earnings as a result of the accident because:
(a) before the accident the claimant had resigned from her employment and her last day was scheduled to be 26 May 2023, being two days after the accident;
(b) the claimant resigned before the accident with the intention of taking a career break, including that she had intended to travel overseas for an extended period, and
(c) the loss of earnings arises from the claimant’s decision, made before the accident, to take a career break and travel overseas for an extended period and not as a result of the accident.
IMPORTANT PRELIMINARY ISSUES THAT ARISE FROM THE DOCUMENTS
The information before me indicates there is a question as to whether the claimant has complied with her disclosure duties, including her duty to act honestly and not mislead, under ss 6.3 and 6.24 of the MAI Act.
The claimant has the following obligations under these sections:
“6.3 Duty of claimants and insurers to act with good faith
(1) A claimant and an insurer each have a duty to act towards the other with good faith in connection with a claim.
(2) The duty of a claimant to act with good faith includes the following duties--
(a) a duty to act honestly and not mislead,
(b) a duty to disclose all relevant information (including reports by health professionals) in a timely manner,
(c) a duty to promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim.”
(emphasis added)
“6.24 Duty of claimant to co-operate with other party
(1) A claimant must co-operate fully in respect of the claim with the other party to the claim (being the insurer on the claim or, if there is no insurer, the person against whom the claim is made) for the purpose of giving the other party sufficient information--
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim, may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement in the case of a claim for damages.”
Further, s 6.41 provides:
“6.41 Fraud on motor accidents injuries scheme
(1) A person who by deception obtains, or attempts to obtain, for himself or herself any financial advantage in connection with the motor accidents injuries scheme under this Act is guilty of an offence if the person knows or has reason to believe that the person is not eligible to receive that financial advantage.
: Maximum penalty--500 penalty units or imprisonment for 2 years, or both.
(2) A person who by deception obtains, or attempts to obtain, for another person any financial advantage in connection with the motor accidents injuries scheme under this Act is guilty of an offence if the person knows or has reason to believe that the other person is not eligible to receive that financial advantage.
: Maximum penalty--500 penalty units or imprisonment for 2 years, or both.
(3) A person is not liable to be convicted of an offence against this section and any other provision of this Act as a result of the same conduct.
(4) In this section--
’deception’i means any deception, by words or other conduct, as to fact or as to law, including the making of a statement or the production of a document that is false or misleading.
’financial advantage’ includes a financial advantage for an injured person (or a person who claims to be an injured person), an insurer or a medical or other service provider.”
The claimant has provided at least six certificates of capacity in which she has declared on at least six separate occasions the following as “true and correct, knowing that false declarations are punishable by law”:
“I have not engaged in any form of paid employment, self-employment or voluntary work for which I have received or am entitled to receive payment in money or otherwise since the last certificate was provided, that I have not yet declared to the insurer”.
The only pre-accident employment that appears to have been disclosed by the claimant to her general practitioner (GP), Allied Health Recovery (AHR) treatment providers, Greenlight and the insurer is a part-time administrative role with a business called “Danix Haulage”.
In addition to the claimant’s declarations to the insurer she has not engaged in any employment or self-employment post-accident, the evidence before me suggests the claimant may have also lead her GP, AHR treatment providers and Greenlight to think she has not undertaken any employment or self-employment since the accident.
The claimant’s submissions for this merit review also contend she has not undertaken any work of any kind since the accident.
However, the evidence provided by the claimant of her job seeking activities show the claimant uses business email addresses, being [email protected] and [email protected].
A quick check reveals the claimant holds an Australian Business Number (ABN) 58 134 407 996 and is the owner of at least two businesses which appear to have continued to be active since the accident, despite the claimant’s contention (and declarations) that she has not worked since the accident.
The claimant goes by the names “Blagica Kraljevic”, “Belinda Kraljevic”, as she informed the insurer when she provided evidence of job seeking activities in the name of “Belinda”, and “Belinda Naumoska Kraljevic”.
The claimant is the holder of two registered business names, “Sweet Xpress” and “Be Lured Makeup Artistry” (Be Lured). Both businesses are registered with the Australian Securities and Investment Commission (ASIC) in the claimant’s name and to the same address the claimant provided in her application for personal injury benefits.
The Be Lured business has a website beluredmakeup.com. The contact email for the business is the same as the email address used by the claimant to seek employment. The business contact phone number for Be Lured and Sweet Xpress is also the claimant’s contact number in her application for personal injury benefits. There can be no doubt that the claimant and the owner/operator of these businesses is the same person.
The claimant appears to also use the trading names “Be Lured Mobile Pamper Events” (or “Be Lured Mobile Pamper Event”) and “Sweet Xpress by Bel”.
The claimant has various social media for her businesses, including Facebook (“beluredmobilepamperevents” and “SweetXpress”), Instagram (@beluredmobilepamperevent” and “@sweetxpressbybel”) and TikTok.
Social media, including recent Google reviews, indicates both businesses have continued to actively trade since the accident.
Be Lured is a mobile beauty salon business which also offers mobile pamper (spa treatment) events, children’s pamper parties and other group events. Sweet Xpress (or Sweet Xpress by Bel) is a business specialising in custom designed, edible art sugar cookies and other sweet treats.
According to social media, Be Lured has held a number of group events since the accident (both before and after the overseas travel dates), including various children’s birthday spa pamper parties and September school holiday makeup tutorials/pamper events for children. The claimant recently posted (post-accident) on social media about her new business cards, a flyer letterbox drop she conducted for her business and that her business now accepts contactless card payment via Square.
There is also a post that would appear to confirm the claimant was in Europe on or about 27 August 2023 (the insurer can presumably confirm the claimant’s overseas travel by way of seeking production of passenger movement records from the Department of Home Affairs).
According to the claimant’s social media posts the claimant’s Sweet Xpress business is currently selling advent calendars, Christmas baubles filled with sweet treats, biscuit tins with customised cookies and gingerbread house do it yourself (DIY) kits and is offering gingerbread decorating workshops for groups of 8 to 14 children, among other business activities.
The above information obtained from a basic ABN and social media search prompted by the business email addresses in documents provided by the claimant to the insurer puts into question the veracity of this claim. The claimant’s social media posts and Google reviews contradict the contentions of the claimant that she has not worked since the accident and has no capacity for work as a result of her injuries. According to Google reviews and social media, the claimant has been working in self-employment prior to and since the accident, running two businesses. This work appears far more physical and onerous than the claimant’s previous part-time administrative assistant role, which was a sedentary role. One would expect the opinion of the general practitioner providing certificates of capacity to the effect the claimant has little or no capacity for her pre-accident part-time administrative role would have a different opinion if the claimant had disclosed to them her significant self-employed business activities post-accident.
The above information does not form part of my consideration or decision on the dispute set out below given that, other than the inclusion of business email addresses, neither party has put the above information before me. The below decision is reached solely on the documents provided by the parties in this merit review. However, it is clear from the above that further investigation should be undertaken by the insurer to determine, pursuant to s 6.24 of the MAI Act, the validity of the claim and whether any part of the claim is fraudulent.
REASONS
The legislation
The reviewable decision concerns payment of weekly statutory benefits during the first entitlement period under s 3.6 of the MAI Act, which relevantly provides:
“Weekly payments during first entitlement period (first 13 weeks 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 first entitlement period.
Note : Only a person who was an earner when injured is entitled to statutory benefits under this section--see Schedule 1.
(2) …”
(emphasis added)
There is no dispute that the claimant is an earner for the purpose of the MAI Act. The dispute is whether the claimant suffered a loss of earnings in the first entitlement period (first 13 weeks after the accident) as a result of the injury that resulted from the motor accident.
The first entitlement period that is, the first 13 weeks after the claimant’s accident for the purpose of s 3.6 is the period from 25 May 2023 until 23 August 2023.
As emphasised above, s 3.6 requires two matters to be established as threshold issues before an injured person is entitled to payment of weekly statutory benefits under that section. As threshold issues the claimant must establish:
(a) they were “injured as a result of a motor accident”, and
(b) they suffered a loss of earnings in the relevant period “as a result of the injury” that is, as a result of the injury that resulted from the motor accident.
This dispute concerns the second limb at paragraph 36(b) above that is, whether the loss of earnings was a result of injury sustained in the motor accident.
It is not sufficient for the claimant to merely establish she suffered a loss of earnings during the first entitlement period. There may well be a loss of earnings. However, s 3.6 of the MAI Act requires that the loss of earnings has occurred “as a result of the injury” sustained in the motor accident. If the loss of earnings is attributable to another cause, then s 3.6 is not satisfied (even if an injured person is also unable to work because of the injury). If the requirement in s 3.6 that the reason there is a loss of earnings is because of the subject injury is not satisfied, the claimant is not entitled to weekly payment of statutory benefits under s 3.6.
The onus is on the claimant to establish at the civil standard of proof (on the balance of probabilities) that any loss of earnings suffered in the period 25 May 2023 to 23 August 2023 is a result of the injuries she sustained as a result of the motor accident.
The evidence
On 30 May 2023 the claimant lodged an application for personal injury benefits. In that application the claimant declared she had not been away from work as a result of the motor accident.
There is a certificate of capacity dated 25 May 2023 which certifies the claimant as having “some capacity for some type of work” from 12 June 2023.
There are certificates of capacity thereafter which contend the claimant has no capacity for work, despite the initial assessment on 25 May 2023.
On 6 June 2023 the claimant advised the insurer that prior to the motor accident she had resigned from her employment and her last day was two days after the motor accident, on 26 May 2023. The claimant advised the insurer she had been working in an administrative role at the time of the accident.
On 18 June 2023 the insurer received an Activities of Daily Living (ADL) Assessment from Greenlight which recorded the claimant was “Unemployed – between jobs”. The claimant was assessed as “fit for pre-MVA duties”. During the ADL assessment the claimant confirmed she had resigned from her role in administration two weeks prior to the accident because she was “wanting a change”. The claimant indicated she planned to find a new role following her return from an overseas trip scheduled for July/August 2023.
Contrary to the ADL assessment, an AHR request dated 14 June 2023 (and a certificate of capacity dated 16 June 2023) stated that at this time the claimant had no capacity for work.
On 21 June 2023 the insurer accepted the claimant was entitled to statutory benefits but denied weekly payments for loss of earnings. However, on 29 June 2023 the insurer made weekly payments of statutory benefits under s 3.6 for loss of earnings from 25 May 2023 to 26 May 2023. This appears to be an error as the claimant was either paid by her employer and/or working at the time.
On 11 July 2023 an AHR request stated the claimant “has capacity for PT admin work”. Accordingly, by this time the claimant had been assessed by Greenlight and by the treatment providers in connection with the AHR requests as being fit for her stated pre-injury occupation as a part-time administrative assistant. However, the GP certifying the certificates of capacity continued to certify the claimant as having no capacity for work.
On 13 July 2023 a certificate of capacity stated the claimant had no capacity for work until 8 August 2023. However, the certifying doctor also recorded the claimant was travelling overseas from 23 July 2023 to 4 September 2023.
Consistent with the claimant being overseas from about 23 July 2023 to about 4 September 2023 the claimant next obtained a certificate of capacity on 7 September 2023, again stating the claimant had “no current work capacity for any employment”.
On 21 September 2023, an AHR request stated the claimant continued to have capacity for part-time work. Dr Karim, however, continued to provide certificates of capacity stating the claimant has “no current work capacity for any employment”.
Between 21 January 2023 and 18 May 2023, before the motor accident, the claimant carried out limited job seeking activities. This involved submitting approximately six applications online via seek.com for part-time administrative roles, messaging two recruitment agencies and making some phone calls. This activity all occurred prior to the accident. None of the seek.com applications were successful and there is no evidence that contact with the recruitment agencies progressed beyond initial enquiries.
Consideration
There is no evidence of any assessment undertaken by the GP providing certificates of capacity such that their opinion the claimant has no capacity is properly informed. There is no explanation (or evidence in support) as to why a GP initially certified the claimant as being fit for some form of work but then shortly after revised their opinion to no capacity. For the most part, much of the detail in the certificates of capacity is not updated by the GP in follow up assessments from the information in the initial certificate, which one would assume by September/October 2023 is out of date. The certificates appear to have been prepared based on ticking boxes rather than active engagement in other information to be included in the certificate and instead, simply duplicating previous information.
The certificates of capacity are at odds with the Greenlight assessment dated 18 June 2023 and AHR requests dated 11 July 2023 and 21 September 2023 which all express the view that at least by 11 July 2023 (if not before) the claimant has capacity for her stated part-time employment as an administrative officer.
Unlike the GP, it is evident Greenlight carried out a full activities of daily living assessment in the claimant’s home. The AHR treatment providers have been actively engaged in assessing and treating the claimant. On this basis and given Greenlight and the AHR treatment providers agree by 11 July 2023 that the claimant has capacity for her pre-injury work, I am of the view this evidence is to be preferred over the certificates of capacity.
Accordingly, I am satisfied on the balance of probabilities that at least by 18 June 2023, being the date of the Greenlight assessment, the claimant had (and continued to have) full capacity for her stated pre-injury occupation as a part-time administrative assistant.
I am also satisfied on balance that the claimant was overseas (or intended to be overseas) from on or about 23 July 2023 to 4 September 2023 and that this absence from employment was planned prior to the motor accident. These dates are recorded by the GP in a certificate of capacity dated 13 July 2023. There is then an absence of certificates of capacity in the period 14 July 2023 until 6 September 2023 (the next certificate is obtained on 7 September 2023) which no doubt is because the claimant was overseas in this period. There is also an absence of AHR requests in the period 12 July 2023 until 20 September 2023, which also indicates the claimant was overseas during this time.
As set out above, the claimant is not entitled to payment of weekly statutory benefits unless she suffers a loss of earnings as a result of the injury sustained in the motor accident. The evidence establishes that if the claimant suffered a loss of earnings, it was not the result of injury sustained in the motor accident but was the result of other causes. That is, regardless of the accident the claimant would have suffered the loss in any event.
Firstly, the claimant intended, before the accident, to travel overseas from 23 July 2023 to 4 September 2023 and likely did travel in that period. Having resigned from her employment as of the day of the accident the claimant therefore expected to receive no earnings in this period, regardless of the accident. Accordingly, any loss of earnings during the period 23 July 2023 to 4 September 2023 is not a result of injury sustained in the motor accident but because the claimant intended to be away from employment in any event.
Secondly, the claimant had resigned from employment before the accident and intended to take a break. In a situation of a person resigning from their current employment without first securing another job that person can reasonably expect to be out of work for a lead in period.
On the claimant’s evidence she attempted to obtain alternative employment over a period of approximately five months from January to May 2023 but was unsuccessful. The claimant’s last job seeking activity was approximately 10 days before the accident. There is no evidence she was actively seeking employment at the time of the accident. Even if the claimant would have recommenced job seeking activities after the accident, if the accident had not occurred, her ability to commence another job would have been delayed by her planned overseas travel from 23 July 2023.
Having regard to the evidence that in a five month period before the accident the claimant’s job seeking activities were unsuccessful, it is unlikely in the short two month period between the accident and overseas travel that the claimant would have successfully obtained alternative employment, if she had resumed job hunting after the accident. It is even more unlikely that she would have commenced new employment before going overseas, given this travel was imminent.
Accordingly, the evidence establishes on balance that to the extent the claimant suffered any loss of earnings in the from 23 May 2023 it is not the result of injury sustained in the motor accident but because the claimant had resigned and was deliberately in between jobs, on a career break or alternatively, would not have secured a new job before travelling overseas. Accordingly, the claimant would have suffered the same loss of earnings in any event, even if she had not suffered injury in a motor accident.
Further, the evidence establishes the claimant has been fit for her pre-injury employment since at least 16 June 2023. Accordingly, any loss of earnings from 16 June 2023 is not the result of injury sustained in the motor accident.
As I have concluded the claimant has not suffered a loss of earnings as a result of injury sustained from the motor accident and instead, any such loss is due to other factors the claimant is not entitled to payment of weekly statutory benefits under s 3.6 of the MAI Act.
CONCLUSION
For the reasons set out at paragraphs 33 to 64 above, the claimant has not suffered a loss of earnings as a result of injury that resulted from the motor accident. The claimant would have suffered the loss regardless of the accident, because of other factors. The claimant is therefore not entitled to payment of weekly statutory benefits under s 3.6 of the MAI Act.
The reviewable decision is therefore affirmed.
For the reasons set out in paragraphs 12 to 32 above It is recommended that the insurer undertake an immediate investigation into whether the claimant is in breach of her disclosure obligations under the MAI Act, including her duty to act honestly and not mislead, to determine under s 6.24(1)(a) of the MAI Act the validity of the claim and whether any part of the claim may be fraudulent.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.
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