AAT v NRMA
[2021] NSWPICMR 12
•20 May 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | AAT v NRMA [2021] NSWPICMR 12 |
| APPLICANT: | AAT |
| RESPONDENT: | NRMA |
| MERIT REVIEWER: | Michael Sofoulis |
| DATE OF DECISION: | 20 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; weekly payments of Statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017; graphic designer; pre and post-accident earning capacity; required surgery for a fracture of the left distal radius; certificates of capacity; earning capacity decision after 78 weeks; certified fit to resume his pre-injury duties; relevant notice period complied with; applied for multiple positions as a graphic designer and other roles without success; Held- decision affirmed. |
| DETERMINATIONS MADE: | 1. The reviewable decision is about weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act2017 (the Act), graphic designer, pre and post-accident earning capacity, certificates of capacity, return to work efforts and is therefore a merit review matter under Schedule 2(1)(a) of the Act. 2. The reviewable decision is: (a) Affirmed 3. The Insurer has assessed the Claimant’s post-accident earning capacity as required by the Act and Motor Accident Guidelines. 4. The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0.00 inclusive of GST. |
Background
There is a dispute between AAT and the Insurer about the amount of weekly benefits payable to the Claimant under Division 3.3 (weekly payments of statutory benefits to injured persons) of the Motor Accident Injuries Act 2017 (the Act).
The Claimant was injured in a motor vehicle accident on 19 February 2019.
The Claimant sustained injuries and was entitled to statutory benefits, including weekly payments as a result of the motor vehicle accident.
At date of accident the Claimant was employed as a graphic designer.
The Claimant received weekly benefits until 14 October 2020 when those payments ceased following an Earning Capacity Decision After 78 Weeks which was made on 18 August 2020.
The post-accident earning capacity assessment and discontinuance of weekly benefits is the subject of this dispute.
On 28 August 2020 the Claimant requested an internal review of the Insurer’s decision with respect to cessation of payment of weekly benefits and the assessment of his earning capacity post 78 weeks.
The Insurer conducted an internal review, and an Internal Review Certificate was issued on 9 September 2020 which affirmed the original decision.
The Claimant disputes the Insurer’s decision and lodged an application for Merit Review with the Dispute Resolution Service on 15 September 2020.
The application for Merit Review was lodged in accordance with s 7.12(1) of the Act and the Motor Accidents Guidelines.
Submissions
The Claimant’s submissions in support of his application for Merit Review are summarised below:
(a) The Claimant submits that he has not been able to secure employment since the accident and that he is uncertain about future job prospects in his field or any other that may involve intense manual labour straining against his sore wrist.
(b) In an undated email sent before his request for an Internal Review the Claimant stated:
(i)“Throughout the period I lost my job at XXX, I’ve been applying extensively for potential roles in graphic design and other ones related to it, among which I’ve had a few interviews booked. They all looked very promising at the time of the interviews, but then I was only given rejection feedbacks the following weeks, on multiple occasions. Additionally, I’ve been applying to many other roles in fields that are different from my qualifications, and still have been receiving rejection letters or left without any response or feedback at times.”
The insurer’s submissions in reply are summarised below:
(a) The Insurer submits that the treating medical evidence confirms that the Claimant has been certified fit to resume his pre-injury duties as a Graphic Designer.
(b) The Insurer relies on a Labour Market Assessment Report dated 19 March 2020. That report “determined that employment as a Graphic Designer is “significant” and “readily available in AAT’s local labour market” and the likelihood of gaining employment is “good”.
(c) The Insurer further submits that:
(i)Section 3.8(2) of the Act governs the payment of weekly payments of statutory benefits after the second entitlement period, after week 78;
(ii)In accordance with section 3.8 weekly payments are determined by calculating the difference between 85% of the Claimant’s pre-accident earning capacity and his post-accident earning capacity;
(iii)That the Claimant’s post-accident earning capacity is greater than his pre-accident earning capacity and the weekly payment of statutory benefits after the second entitlement period is not available to the Claimant.
Reasons
The Claimant sustained injury in a motor vehicle accident on 19 February 2019.
The Claimant was entitled to and received statutory benefits in accordance with section 3.1 of the Act.
On 18 August 2020 the Insurer made an earning capacity decision regarding the Claimant’s post-accident earning capacity.
The Insurer can make an earning capacity decision about a claimant’s pre or post-accident earning capacity at any time in accordance with section 3.16 of the Act.
Any decision to discontinue or reduce weekly payments must be done in accordance with the notice provisions found in section 3.19 of the Act.
I’m satisfied that the relevant notice period was complied with.
The other issue to be considered is whether the Claimant’s post-accident earning capacity has been assessed in accordance with the Act.
Section 3.8(2) of the Act provides that after the second entitlement period an injured person is entitled to weekly payments at 80% (in the case of total incapacity) or 85% (in the case of partial incapacity) of the difference between pre-accident earing capacity and post-accident earning capacity (if any).
The meaning of the term “Post-accident earning capacity” can be found in Schedule 1, Clause 8 of the Act and states:
“8 Meaning of "post-accident earning capacity"
(1)
"Post-accident earning capacity" of an injured person means--
(a) 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, or
(b) for any period after the second entitlement period--the weekly amount the person has the capacity to earn in any employment reasonably available to the person, determined on the basis of the person's fitness for work in any such employment.” (Emphasis added).
The Claimant’s post-accident earning capacity was considered by the Insurer after the second entitlement period therefore Schedule 1, Clause 8(1)(b) and Clause 8(3) apply.
Schedule 1, Clause 8(3) is set out below:
“(3) A person’s fitness for work after the second entitlement period is to be determined having regard to the following:
(a)the nature of the injury and the likely process of recovery,
(b)treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,
(c)the person’s training, skills and experience,
(d)the age of the person,
(e)any medical certificate provided by the injured person as to the person's fitness for work.”
To determine what employment is reasonably available to the person after 78 weeks one must also have regard to Clause 4.55 of the Motor Accident Guidelines. Set out below:
“Post-accident earning capacity (after 78 weeks)
When determining employment reasonably available to a claimant at any time after the second entitlement period (from week 79 after the motor accident), the matters to be considered include:
(a) the nature and extent of the claimant’s injuries
(b) the claimant’s age, education, skills and work experience
(c) rehabilitation services that are being or have been provided
(d) the nature of the claimant’s pre-injury employment
(e) the claimant’s place of residence at the time of the motor accident
(f) the details given in the claimant’s certificate of fitness
(g) the length of time the claimant has been seeking employment, and
(h) any other relevant circumstance.”
Immediately following the motor vehicle accident, the claimant had no capacity for work.
The claimant required surgery for a fracture to his left distal radius and made a gradual recovery.
The Claimant furnished the Insurer with Certificates of capacity / Certificates of fitness in compliance with his obligation to do so as set out in section 3.15 of the Act.
From about 25 March 2019 Dr Joseph, the Claimant’s treating general practitioner, provided a number of Certificates of capacity / Certificates of fitness which indicated that the claimant had capacity for some type of work for 4.5 hours per day, 5 days a week.
From about 17 May 2019 Dr Joseph certified the Claimant fit to work for eight hours per day, five days a week subject to a 1kg lifting restriction.
In a Certificate of Capacity dated 5 February 2020 Dr Joseph certified the Claimant fit for some type of work for eight hours per day, five days per week and a lifting capacity of 20kg.
Thereafter Dr Joseph provided Certificates of Capacity from 4 March 2020 until 4 November 2020 that certified the Claimant fit for work for eight hours per day, five days a week.
There is a Benchmark Rehabilitation Labour Market Assessment Report dated 20 July 2020. The report considered the Claimant’s vocational options and conducted a labour market analysis.
The Claimant has also provided evidence of job seeking post-accident. Consistent with his submissions the “Job Logs” demonstrate that the Claimant has applied for multiple positions as a graphic designer and other roles without success.
The Insurer made its Earning Capacity Decision After 78 Weeks on 18 August 2020. The Insurer relies on the medical evidence provided by the Claimant’s treating general practitioner, the Labour Market Analysis and rehabilitation reports.
I’m satisfied that in doing so the Insurer had regard to the factors referred to in Schedule 1, Clause 8(1)(b), Clause 8(2) of the Act and Clause 4.55 of the Motor Accident Guidelines when making their determination.
I therefore find that the Insurer has assessed the Claimant’s post-accident earning capacity as required by Schedule 1, Clause 8(1)(b) and Clause8(2) of the Act and Clause 4.55 of the Motor Accident Guidelines.
1.Conclusion
The reviewable decision is:
(a) Affirmed
The Insurer has assessed the Claimant’s post-accident earning capacity as required by the Act and Motor Accident Guidelines.
The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0.00 inclusive of GST.
Legislation and Guidelines
In making this decision, I have considered the following:
· The Application, Reply and supporting documentation
· The Act
· Motor Accident Guidelines
· Motor Accident Injuries Regulation 2017
Michael Sofoulis
Merit Reviewer
Personal Injury Commission
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