ABT v Cic Allianz

[2021] NSWPICMR 24

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	ABT v CIC Allianz [2021] NSWPICMR 24
APPLICANT:	ABT
RESPONDENT:	CIC Allianz
MERIT REVIEWER:	Kriesen Seeneevassen
DATE OF DECISION:	24 June 2021
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017; not an “earner”; Centrelink; a carer; “Unable to return to pre MVA role as a carer”; only injured earners are entitled to statutory benefits; usual occupation is that of a carer; the claimant was not an earner at the time of the MVA; care payments are income support and income supplements; Held- reviewable decision affirmed.
DETERMINATIONS MADE:	1.    The reviewable decision is affirmed.

Background

1. There is a dispute between ABT (the claimant) and the Insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the 2017 Act.

1. The claimant was driving along Hume Street in Crows Nest at about 9:40 am on 12 October 2020. Their vehicle was involved in a motor vehicle accident (MVA) when it was hit and dragged several metres by a truck while they had stopped at the intersection of the Pacific Highway to make way for a turning waste collecting truck.

2. The claimant lodged an application for personal injury benefits dated 21 October 2020. The insurer made a decision on 18 November 2020 that they were not entitled to weekly payment of statutory benefits as they are not an “earner” as defined by Schedule 1 of the 2017 Act.

1. The claimant’s application for internal review dated 19 December 2020 lists the decision in dispute as:

   "Weekly wages: my payment from the Centrelink will be ceased from the Centrelink from 30.12.20 as I am unable to perform my role as a carer due to MVA. Therefore, I believe l am entitled to wage loss from 30.12.20."

1. The insurer’s certificate of determination dated 31 December 2020 affirmed their decision to deny liability the claimant’s claim for statutory benefits.

2. The claimant’s application to resolve a dispute lists the dispute as “Weekly wages – Unable to return to pre MVA role as a carer. Therefore, I believe that I am entitled for wages loss from 13.10.2020”.

Submissions

1. Neither party have lodged submissions.

Reasons

1. Section 3.6 of the 2017 Act provides that only injured earners are entitled to statutory benefits.

1. Schedule 1 clause 2 of the 2017 Act defines an earner as follows:

   “A person who is injured as a result of a motor accident is an "earner" if the person is at least 15 years of age and who--

   (a)    was employed or self-employed (whether or not full-time)--

   i.at any time during the 8 weeks immediately preceding the motor accident, or

   ii.during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident, or

   iii.during a period or periods equal to at least 26 weeks during the 2 years immediately preceding the motor accident,

   and, at the date of the motor accident, had not retired permanently from all employment, or

   (b)    before the motor accident, had entered into an arrangement (whether or not an enforceable contract)--

   i.with an employer or other person to undertake employment, or

   ii.to commence business as a self-employed person,

   at a particular time and place, or

   (c)    was, immediately before the motor accident, receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.”

2. Section 7 of the claimant’s application for personal injury benefits shows the claimant’s usual occupation is that of a carer with fortnightly earnings of $1,200 fortnightly.

3. There is a Centrelink payment summary dated 23 November 2020 showing that the claimant received payments of $23,832.00 described as “carer payments” between 1 July 2019 ad 30 June 2020.

4. A Centrelink income statement, also dated 23 November 2020, shows that the claimant was receiving regular carer payments and allowances.

5. I find that the claimant was not an earner at the time of the MVA because:

   (a)    According to the Department of Social Services (DSS)[1], carer allowances are income supplements available to people who provide daily care and attention in a private home to a person with disability or a severe medical condition. Carer payments are income support payments for people who are unable to support themselves through substantial paid employment because of the demands of their caring role. Carers do not receive their DSS payments and allowances by virtue of an employment relationship. These payments are by way of income support and income supplements.

   (d)    It has not been suggested that the claimant was self-employed.

   (e)    It has not been suggested that the claimant was not receiving a weekly payment or other payment in respect of loss of earnings under this
   

   [1] Act or the Workers Compensation Act 1987 immediately before the MVA.

Conclusion

1. The reviewable decision is:

(a)affirmed

Legislation and Guidelines

1. In making this decision, I have considered the following:

   ·        The application, reply and supporting documentation

   ·        The 2017 Act

·        Motor Accident Guidelines

· Motor Accident Injuries Regulation 2017 (NSW)

Kriesen Seeneevassen

Merit Reviewer

Personal Injury Commission