Ajbawi v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Ajbawi v Allianz Australia Insurance Limited [2023] NSWPICMR 17
ClaimanT:	Abdul Aljbawi
Insurer:	Allianz Australia Insurance Limited
Merit Reviewer:	Ray Plibersek
DATE OF DECISION:	22 March 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; pre accident weekly earnings (PAWE); sub-clause 4(1) and (2) of Schedule 1; claimant worked as a glass fitter; claimant also was a Uber Eats driver; dispute about whether claimant was an “earner”; calculation of PAWE; dispute over calculation of income because claimant’s payslips, taxation records and bank deposit records were inconsistent; disagreement over the interpretation of the records; Held- claimant met the definition of earner; claimant’s PAWE determined on the basis of his tax returns; claimant’s PAWE should be calculated for 26 week period immediately before the accident as this was most reliable in this case; claimant’s payslips, taxation records and bank deposit records were inconsistent and unreliable; remitted to the Insurer for reconsideration and recalculation of the claimant’s weekly entitlements; legal costs not available because a dispute under Division 3.3 about weekly payments is not a regulated merit review matter under section 8.10 and Schedule 1 of the Motor Accident Injuries Regulation 2017; see AAR v Allianz Australia Ltd and Khadka v CIC-Allianz.
Determinations made:	Certificate of Determination Issued under s 7.13(4) of the *Motor Accident Injuries Act2017* The certificate of this review determination is as follows: 1. The reviewable decision is set side. 2. The claimant’s pre-accident weekly earnings is determined under** sub-clause 4 (2) (a1) of Schedule 1 of the Motor Accident Injuries Act 2017 (the MAI Act) to be $1,200 per week. 3. The matter is remitted to the insurer for reconsideration and recalculation of the claimant’s entitlement to weekly payments of statutory benefits in accordance with these reasons and Division 3.3 of the MAI Act.

REASONS FOR DECISION

BACKGROUND

On 21 January 2022, Abdul Aljbawi, (the claimant) was injured in a motor vehicle accident when his car collided with a bus on the corner of Chapel Road and Macauley Street Bankstown.
The claimant’s reported injuries included to the head, chest, spine, pelvis and abdomen.
In the 12 month period before the accident the claimant was employed as either an operating manager, administrative assistant or glass fitter for Brightness Glass and Glazing.[1] For a short time of about two and a half weeks he was also self-employed as an Uber Eats driver.
[1] See the letter from the employer dated 13 June 2022, A 1, pp 7-8.
The dispute is a merit review application about the amount of weekly payments of statutory benefits that are payable under division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
By letter dated 4 March 2022 the insurer wrote to the claimant saying he was not eligible for payments of weekly benefits for loss of earnings as he did not meet the definition of an earner under the legislation.
By letter dated 16 May 2022 the claimant’s solicitors applied for an internal review of that decision.
By letter dated 27 May 2022 the insurer determined its internal review with a decision to maintain the original decision that the claimant does not meet the definition of an earner for the purposes of the MAI Act.

The claimant continues to submit that he is an earner and disputes the way the insurer has calculated his pre-accident weekly earnings (PAWE).
The claimant seeks a merit review of the insurer’s internal review determination dated
27 May 2022.

DOCUMENTS CONSIDERED

The documents I have considered are those referred or attached to the application for merit review and the insurer’s reply including the following documents: written submissions, payslips, bank statements and financial records produced by the claimant and the insurer.

SUBMISSIONS

The claimant submits in his application form dated 2 February 2022 that he worked as an operating manager for Brightness Glass and Glazing. He states that he earned $3000 per week at the time of the accident.
In submissions from the claimant’s solicitor dated 24 June 2022, his solicitors write that at the time of the accident the claimant was employed by Ali Aljbawi trading as Glass Glazing also named Brightness Glass and Glazing Pty Ltd. The solicitor’s submission notes that Ali Aljbawi is a director and employee of that business. Ali Aljbawi appears to have the same surname as the claimant but there is no explanation in any of the material before me as to any familial or other relationship between Ali Aljbawi and the claimant. I make no finding or draw any conclusion or inference about any potential relationship between Ali Aljbawi and the claimant.
The solicitor’s submissions states that the claimant worked 80 hours per fortnight for $52 per hour which equated to $4160 gross per fortnight for $3000 net per fortnight. This figure was confirmed by the claimant’s employer in a letter dated 13 June 2022. The letter stated that the claimant was employed as a “glazier labour”.[2] The letter also stated that the claimant was paid by EFT except for the period 20 July 2021 to 21 January 2022 where he was paid mostly by cash. I note the letter quotes the ABN of the business as 48 5889 506 06.
[2] See the letter from the employer dated 13 June 2022, A 1, pp 7-8.
The submission states that the claimant has produced payslips for the period
27 January 2021 to 27 January 2022 accounting for 26 payslips showing his consistent fortnightly earnings. The submissions also refer to bank statements that identify payments from Ali Aljbawi of: $10,000, $3000, $3000, $3000 and $3000 in the period from 16 March 2021 until 19 July 2021.
The submissions also note that the claimant commenced working for Uber Eats from about 20 August 2021 until 7 September 2021 earning various amounts which they particularise in their submissions.
The claimant solicitors submit that the claimant satisfies the definition of earner in the MAI Act. The solicitors write that the claimant has produced payslips clearly showing he was employed from 27 January 2021 to 27 January 2022. The submissions note that due to the COVID-19 lockdown the claimant did not physically work from about August to September 2021 but thereafter returned to work and had been working until the date of the accident.
The insurer made a detailed analysis of the claimant’s payslips, bank accounts and income from Uber Eats in its internal review determination dated 27 May 2022. The internal review reasoning makes the following submissions:
(a) the claimant does not meet the legal definition of “earner” under cls 2 and 3 of Schedule 1 of the MAI Act;
(b)   the first two payslips provided by the claimant show his job title as admin assistant earning $60 per hour for the period 18 May 2021 until 14 June 2021;
(c)   payslips provided by the claimant on 16 March 2022 show his job title as glass fitter earning an hourly rate of either $52 per hour or $16 per hour from
1 July 2021 until 9 March 2022;
(d)   then payslips provided by the claimant on 18 March 2022 show his job title as glass fitter earning an hourly rate of $52 per hour from 13 January 2021 until
26 January 2022;
(e)   copies of bank statements from the Commonwealth Bank show one payment of $10,000 and four payments of $3000 and five payments from Uber BV;
(f)    the claimant received Centrelink payments recorded in his bank statements from 25 July 2021 until 3 October 2021;
(g)   the internal review notes the various payslips provided for similar periods of time yet showed different hourly rates and different amounts and pay rates, there are also conflicting year to date gross paid and year-to-date tax paid figures;
(h)   the findings made on internal review is that the financial information provided by the claimant does not substantiate he is an earner because the earnings contained within the payslips and bank statements are inconsistent with one another and thus the insurer cannot corroborate the earnings reported;
(i)    the insurer notes that only eight weeks of payslips match up with deposits in the Commonwealth bank statements of amounts of $3000 for the period from
19 May 2021 until 14 July 2021;
(j)    there appears to be no further evidence of payments made into the Commonwealth Bank statements corresponding to the payslips after
14 July 2021;
(k)   insurer notes that three different hourly pay rates are specified in the invoices and payslips provided being $16, $60 and $52 per hour, and
(l)    the internal review decision then refers in its conclusion to the significantly conflicting evidence about payslips and bank statements and concludes that the claimant is not an earner.[3]
[3] See Allianz internal review decision dated 27 May 2022, A 1, pp 24-31.
The insurer also makes the following further submissions dated 22 July 2022:[4]
[4] See Allianz Submissions dated 22 July 2022, R 1, pp 1-6.
a) the claimant does not meet the legal definition of “earner” under cls 2 and 3 of Schedule 1 of the MAI Act;
b)    the insurer relies upon the decision AFC v NRMA [2019] NSWDRS MR 129 which held that a person may not be an earner if there is insufficient evidence to substantiate the claimant’s earnings before the motor accident;
c)     the insurer then again sets out in table form a summary of all the claimant’s payslips and bank transfer and Centrelink payments;
d)    the insurer then submits that the totality of the financial information does not substantiate the claim that he is an earner because the earnings contained within the payslips and bank statements are inconsistent with one another and cannot be corroborated to satisfy that the claimant is an earner;
e) the insurer is unable to verify that a $10,000 payment made on 16 March 2021 is income from personal exertion as required by the MAI Act;
f)     the employer’s letter which states that EFT payments were made to the claimant except the period 20 July 2021 to 21 January 2022 appear inconsistent with the transfers shown in the bank statement;
g)    there is a further contradiction where the claimant allegedly did not return to work on 21 January 2022 yet payslips are provided for 80 hours worked per fortnight from 13 January 2022 until 9 March 2022;
h)    the claimant has not substantiated that he worked for the requisite periods for Brightness Glass because his payslips are inconsistent with his bank statements except for an eight week period from 19 March 2021 until 14 July 2021 which is six months before the subject accident;
i) accordingly the claimant has failed to establish that he is an earner entitled to the weekly payments of statutory benefits under division 3.3 of the MAI Act;
j) the period the claimant worked for Uber Eats was 18 days or 2.6 weeks which is much less than the required 13 weeks under the definition in the MAI Act, and
k)      finally insurer notes that claimant has not provided any individual tax returns or notices of assessment to the insurer.
I note that a copy of the claimant’s tax returns were filed in the portal after both the claimant’s and insurer’s solicitors had completed their written submissions.
The claimant’s solicitor made an application to admit late documents dated 30 August 2022.[5] I find that in the interests of justice I would admit that document which is the Notice of Assessment for the financial year ending 30 June 2021. The Notice of Assessment for the 2021 year shows the claimant’s taxable income to be $116,213 and the tax payable as $28,236.22.
[5] See document AD 2.
The claimant’s solicitor made another application to admit late documents dated
[6] See document AD 3.
1 December 2022.[6] I find that in the interests of justice I would admit that document which is the claimant’s individual tax return for the financial year ending 30 June 2022.

REASONS

This is a dispute between the claimant and the insurer about whether the claimant meets the definition of earner in the MAI Act and the calculation of the claimant’s PAWE.

Nature of merit review

This matter is a merit review of the decision of the insurer about whether the claimant is an earner and the amount of weekly payments of statutory benefits in accordance with s 7.13 of the MAI Act. This decision is a reviewable decision as it is listed in Schedule 2, sub-clause 1(a) of the MAI Act. This review is not a review of the insurer’s processes in making the weekly statutory benefits and/or internal review decision. The review requires that I decide what the correct and preferable decision is having regard to the material before me including any relevant factual material and any applicable law.

Legislation

In this merit review, the relevant applicable legislation commences with division 3.3 of the MAI Act which deals with weekly payments of statutory benefits.
Many of the terms used in Division 3.3 are defined in Schedule 1 of the MAI Act. Schedule 1 defines: “earner”; “loss of earnings”; “pre-accident weekly earnings”; “pre-accident earning capacity” and “post-accident earning capacity”. The terms “gross earnings” and “earning capacity” is not separately defined in Schedule 1.

Definition of Earner and PAWE

The terms “earner” and “loss of earnings” are defined in Schedule 1, cls 2 and 3 as follows:
“2 Meaning of ‘earner’
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.
3 Meaning of ‘loss of earnings’
(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
(b) the proceeds of any business carried on by the person either alone or in partnership with any other person, and
(c) any amount received as bounty or subsidy in carrying on a business.
(3)    A person’s income from personal exertion does not include—
(a) interest, unless the person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to the person for goods supplied or services rendered by the person in the course of the person’s business, or
(b) rents or dividends, or
(c) any employer superannuation contributions, or
(d) the monetary amount of any annual, sick or other leave entitlement.”
There is a dispute between the parties that the claimant is an “earner” as defined in Schedule 1, cl 2 of the MAI Act, (R1).
The insurer maintains its position that the claimant does not meet the definition of earner under the MAI Act, (see R1). The claimant’s solicitors maintain their position that the claimant was an earner as defined. In support of their contention the claimant’s solicitors point to numerous payslips and the letter dated 13 June 2022 confirming that the claimant was employed by Brightness Glass and Glazing.
On the facts of this case I find that the claimant satisfies the definition of “earner” as defined in Schedule 1, cl 2 of the MAI Act. The basis for my findings are not only the payslips or letter from the employer but the claimant’s individual tax return for 2022 was produced after both parties had completed their written submissions.[7] The evidence before me shows that the claimant was employed for a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident. I note that the tax return for the year end 2022 shows the occupation of the claimant as “fitter” with a gross income of $62,400 and tax withheld of $17,400 and quotes the Payers ABN as 48 5889 506 06. I note that the ABN number in the tax return is the same as the ABN number of the letter dated 13 June 2022 from Brightness Glass and Glazing which sought to confirm the claimant’s employment and payment history. Clearly the claimant has earnt a substantial amount from Brightness Glass and Glazing and has been assessed and paid income tax to the ATO.
[7] See document AD 3.
PAWE is defined in cl 4 of Schedule 1 of the MAI Act as:
“4 Meaning of ‘pre-accident weekly earnings’—general
(1)   Pre-accident weekly earnings, in relation to an earner who is injured as a result of a motor accident, means the weekly average of the gross earnings received by the earner as an earner during the 12 months immediately before the day on which the motor accident occurred, unless subclause (2) applies.
(2)   In the following cases, pre-accident weekly earnings, in relation to an earner who is injured as a result of a motor accident, means—
(a) if, on the day of the motor accident, the earner was earning continuously, but had not been earning continuously for at least 12 months—the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the day of the motor accident,
(a1) if the earner was employed or self-employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period, but was not obtaining earnings from any source at any other time during the pre-accident period—the average weekly gross earnings received by the earner as an earner during the first year of the pre-accident period,
(b)  if subclause (3) applies—the weekly average of the gross earnings the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred,
(c)  if the earner is an earner by reason of having entered into an arrangement with an employer or other person to undertake employment or to commence business as a self-employed person—the average weekly gross earnings that the earner could reasonably have been expected to earn, but for the injury, in employment under that arrangement.
(2A) The pre-accident period, in relation to a motor accident, is the period of 2 years immediately preceding the motor accident……”
I am satisfied that in this claimant’s case cl 4(1) does not apply because the claimant had been earning continuously for at least 12 months. Based on the evidence before me there is not sufficient reliable evidence where I can confidently find he is working for a full 12 month period before the subject motor accident. Accordingly, the claimant’s PAWE must be calculated under cl 4(2).
Given the date of the accident on 21 January 2022 together with all the available evidence including the claimant’s payslips and banking records, letter of employment and also the Notice of Assessment for 2021 and individual tax return for 2022, I find that the claimant’s PAWE must be calculated under cl 4(1a) where the claimant as earner was employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period.

Calculation of weekly benefits

Having made my finding that the claimant meets the definition of earner under Schedule 1, cl 2 of the MAI Act the issue that remains in dispute is about the calculation of the claimant’s PAWE.
Based on written submissions from the claimant and the insurer it seems that both parties dispute the calculation of the claimant’s income and the amount of the deduction of his expenses as a glass fitter and Uber Eats driver.
PAWE is defined in sub-cl 4 (2) (a1) of Schedule 1 of the MAI Act to mean if the earner was employed or self-employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period, but was not obtaining earnings from any source at any other time during the pre-accident period—the average weekly gross earnings received by the earner as an earner during the first year of the pre-accident period.
In this case the subject motor accident occurred on 21 January 2022. Thus the relevant 26 week period in the claimant’s case is from 21 July 2021 until 21 January 2022.
As detailed above, both parties have made detailed submissions on the claimant’s income with reference to numerous different versions of payslips, bank statements, and information from Uber BV. As noted above neither party had the benefit of being able to refer to Mr Aljbawi’s individual income tax return for 2022 when making their written submissions.
Mr Aljbawi has produced his taxation records for the financial year 2021 – 2022 to be a gross income of $62,400 and tax withheld of $17,400 and quotes the Payers ABN as 48 5889 506 06 which is ABN number for Brightness Glass and Glazing. There is no reported income noted in that return for Uber BV or Uber Eats or any Uber related company. Thus I find the only reported income for that taxation year 2022 is attributable to his employer Brightness Glass and Glazing.
Both the claimant and the insurer give a number of different calculations of the claimant’s PAWE, gross income, net income and expenses.
Having carefully reviewed and considered the above evidence, including taxation records, bank statements, source material and all the submissions I make the following findings.
The claimant submits and calculates his income should be based on an eight week period from 19 March 2021 until 14 July 2021. The claimant submits he worked 80 hours per fortnight for $52 per hour which equated to $4160 gross per fortnight for $3000 net per fortnight.
Although the claimant has provided a large number of bank statements, an employer letter, and taxation records. The claimant has not shown in sufficient detail that he consistently earnt $4160 gross per fortnight for $3000 net per fortnight. As the insurer rightly points out in its submissions and internal review decision, the claimant has stated that he variously earned $16 per hour, $52 per hour or $60 per hour. The claimant’s evidence and submissions also give widely varying accounts of the periods of time when he worked and different versions of payslips. The claimant and the claimant’s solicitor submissions and the claimant’s tax return all variously ascribe the claimant as having a number of different job titles. For these reasons I do not accept the claimant’s estimate for reported evidence of his weekly earnings. I find the claimant’s evidence of his weekly earnings is confused, contradictory and unreliable.
As set out in detail above, the insurer has critiqued in detail the claimant’s evidence of his earnings but has not itself made any attempts to calculate the claimant’s PAWE.
The insurer highlights the inconsistencies and contradictions in the claimant’s evidence of his earnings including inconsistent payslips, varying hourly rates and inconsistencies between payslips and bank deposits. Despite what the insurer submits, these inconsistencies are not by themselves sufficient reason for me to find that the claimant is not an earner and thus not calculate his PAWE. I acknowledge the insurer did not have the benefit of seeing the claimant’s Notice of Assessment for 2021 or the 2022 tax return. It is clear from the taxation records that the claimant earned a substantial income during those two financial years and also paid substantial tax. It is clear on this evidence that he was an earner and relying upon the tax returns is the best and most reliable evidence which can be used to calculate the claimant’s PAWE.
Based upon my review of all the evidence, submissions and calculations by the parties of the claimant’s evidence, I find the best way to calculate the claimant’s PAWE is to accept the annual gross figure in the claimant’s individual tax return for 2022 and divided it by 52 weeks. This figure is based upon the reported earnings from Brightness Glass and Glazing. It also excludes any of the claimant’s earnings as a self-employed Uber Eats driver.
I note that the claimant’s income was significantly higher for the financial year ending
30 June 2021 than the reported income for the financial year ending 30 June 2022. Given all the inconsistent evidence produced by the claimant including all of the varying payslips and bank statements, I find that the most relevant and reliable evidence closest to the period when he had the subject motor accident is for the tax return for the year ending 30 June 2022. For whatever reason, which is undisclosed, his income did drop for the 2022 financial year. I did not have the benefit of detailed submissions from either the claimant nor the insurer responding to the tax return information and submitting how the claimant’s PAWE should be calculated taking into account that evidence.

Accordingly, I find that the correct and preferable figure for the claimant’s PAWE is $62,400 divided by 52 = $1,200 per week. The insurer should recalculate and pay the claimant’s PAWE based on the figure of $1,200.

LEGAL COSTS

In their written submissions, (A 1, p 5), the claimant’s solicitors make an application for an award of legal costs. They write that a determination from a Member is requested in respect of the legal costs and disbursements applicable to a merit review of this nature. They submit that as the claimant’s legal representatives they have: investigated the claimant’s entitlement, sought and reviewed evidence, complied with obligations of the Act, Regulation and Guidelines and drafted submissions and an attempt to resolve the dispute.
The insurer disputes that legal costs are payable for this type of merit review. In its written submissions the insurer refers to two previous decisions which support its submission.[8]
[8] See AAR v Allianz Australia Ltd [2021] NSWPICMR 7 (7 May 2021) and Khadka v CIC-Allianz [2022] NSWPICMR 11 (17 February 2022).
Legal costs are provided for in the MAI Act and allowable by the Motor Accident Injuries Regulations 2017 (the Regulation).
Section 8.3 of the MAI Act provides for the fixing of maximum costs recoverable by Australian legal practitioners. Sub-section 8.10(1) provides that a claimant for statutory benefits is (subject to that section) entitled to recover from the insurer “reasonable and necessary” costs in connection with the claim. This is qualified by sub-sections (3) and (4) which provide that the recovery of costs is allowed if payment is permitted by the Regulations or the Commission, if satisfied that the claimant is under a legal disability or exceptional circumstances exist.
Under Schedule 2 part 1 cl 1(a) of the MAI Act the matter in dispute, under Division 3.3, is declared to be a merit review matter for the purposes of part 7 of the MAI Act.
Under Schedule 1, part 1 clause 1(1) of the Regulation, the maximum costs for legal services provided to a claimant or an insurer in connection with a merit review under Division 7.4 of the MAI Act involving a dispute about a regulated merit review matter are 16 monetary units (to a maximum of 60 monetary units per claim).
The definition of the term “regulated merit review matter” does not include a merit review dispute under Division 3.3 about weekly payments of statutory benefits to injured persons.
As this dispute is under Division 3.3 it is not within the definition of a “regulated merit review matter”. Legal costs are thus not available or payable to the claimant or his solicitors in the circumstances of this case.
Accordingly, for this merit review I have no power to award legal costs unless I am satisfied that the claimant is under a legal disability or exceptional circumstances exist under ss 8.10(4).
There are no submissions or evidence from the claimant’s solicitor claiming that the claimant in this case is under a legal disability or that exceptional circumstances exist under ss 8.10(4).
In the absence of any submissions in this case, I find that the claimant in this case is not under a legal disability nor do exceptional circumstances exist under ss 8.10(4).
Accordingly, I find that amount of legal costs payable to the claimant in this case are $NIL.

CONCLUSION

The reviewable decision is set aside and is remitted to the insurer for reconsideration and recalculation of the claimant’s entitlement to weekly payments of statutory benefits in accordance with Division 3.3 of the MAI Act.
The insurer is to calculate the amount of the weekly payments based on the claimant’s PAWE of $1,200.
The amount of legal costs awarded in this case is $NIL.

[2023] NSWPICMR 17

22 March 2023