CLO v AAI Limited t/as GIO
[2025] NSWPICMR 13
•26 March 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | CLO v AAI Limited t/as GIO [2025] NSWPICMR 13 |
CLAIMANT: | CLO |
INSURER: | AAI Limited t/as GIO |
MERIT REVIEWER: | Elizabeth Medland |
DATE OF DECISION: | 26 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review regarding a dispute as to whether the injured person is an “earner” for the purposes of Schedule 1, clause 3; insurer denied payments of weekly statutory benefits on the basis that evidence was not sufficient to establish the claimant was employed at the time of the accident; claimant alleges being employed in his brother’s car business from two weeks prior to the motor accident; payslips and bank statements provided in addition to other evidence; assessment conference took place however the claimant (unrepresented) became agitated and terminated his participation in the video conference; Held – the original decision is confirmed; inconsistencies in documentary evidence such that not sufficiently satisfied the claimant was working and an earner at the time of the motor accident. |
DETERMINATIONS MADE: | CERTIFICATE Issued under s7.13(4) of the Motor Accident Injuries Act 2017. The findings of the assessment of this dispute are as follows: 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
[CLO] (the claimant) was involved in a motor vehicle accident on
19 June 2024. He made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) with AAI Limited trading as GIO (the insurer), the compulsory third party insurer of the vehicle considered to be at fault.
In an initial liability notice dated 23 July 2024 the insurer declined payment of weekly statutory benefits on the basis that the claimant is not an “earner” for the purposes of Schedule 1, cl 2 of the MAI Act.
In an internal review decision of 20 September 2024, the insurer set aside that decision and instead determined that the claimant met the definition of “earner”.
By way of further notice dated 1 October 2024 the insurer declined payment of weekly statutory benefits on the basis that the claimant is not an “earner” for the purposes of Schedule 1, cl 2 of the MAI Act.
An internal review was requested, and the decision was affirmed by the insurer on
10 October 2024.
The claimant subsequently lodged an application for merit review with the Personal Injury Commission (Commission) on 17 October 2024. The matter has been referred to me as a merit reviewer of the motor accidents division of the Commission.
The dispute is deemed a merit review matter pursuant to Schedule 2 cl 1(a) of the MAI Act.
The claimant was initially legally represented but is now self-represented.
I have held a number of teleconferences with the parties, allowing for further information and documentation to be provided. Ultimately the matter came to be the subject of an assessment conference on 4 March 2025 via videolink. The claimant’s alleged employer, who is also his brother, Mr Fred Younan gave evidence. The claimant also gave evidence, however, via telephone only. During the course of the assessment hearing the claimant became agitated and hung up before the conclusion of the hearing.
Medical evidence has been received from the claimant’s treating general practitioner (GP) who has reported that the claimant’s psychological state is such that the claimant should not participate in any further hearings/teleconferences.
LEGISLATIVE FRAMEWORK
As noted above, the issue in dispute is whether the claimant is an “earner” for the purposes of the MAI Act. If the claimant is not an “earner” there is no entitlement to payments of weekly statutory benefits (see s3.6(1) and s3.7(1) of the MAI Act).
“Earner” is defined in Schedule 1 cl 2 of the MAI Act 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
….”
CHRONOLOGY and EVIDENCE
The accident occurred on 19 June 2024.
The application for personal injury benefits (claim form) is dated 18 June 2024. It is noted that this date is actually the day before the accident. The form was, however, lodged with the insurer on 25 June 2024. In the form the claimant declares that he was employed as yard manager at City Car Galleries and was earning $2,000 per week.
In the accompanying certificate of capacity, the claimant’s GP, Dr Khalil lists the claimant’s occupation as a car yardsman at “City Car Gallery Fred”.
Evidently some conversations were had with the insurer regarding the alleged employment. It was revealed that the claimant had previously worked at City Car Gallery in the same capacity around two years prior. However, there was a period before the accident where he did not work there and allegedly started working there again two weeks prior to the accident.
To support his claim the claimant has provided copies of payslips from City Car Gallery. Those detail payments as follows:
a) payment on 14 June 2024 in the amount of $1,885 (gross $2,631) for period 10 June 2024 to 14 June 2024, and
b) payment on 21 June 2024 in the amount of $1,131 (gross $1,466) for period 17 June 2024 to 19 June 2024.
The payslips detail the claimant’s annual salary to be $140,462.00 with an hourly rate of $71.08040.
The claimant has also provided copies of his bank statements from ANZ that correspond with the payslip amounts (insofar as the amounts are concerned, but the dates do not correspond). The bank statement is for the period 6 March 2024 to
6 September 2024 and the summary notes total deposits of $20,062.93 and total withdrawals of $19,819.80.
However, the actual transactions have been redacted by the claimant, except for the two subject deposits. They demonstrate a deposit on 24 June 2024 in the amount of $1,885.00 from City Car Gallery and a further deposit on 28 June 2024 in the amount of $1,131.00.
Following the declinature by the insurer, a letter from Fred Younan (his brother) of City Car Gallery was provided by the claimant dated 24 July 2024. It states: “this is to confirm [CLO] commenced employment 10th June 2024 as a yardsman and body fitter. For further information please do not hesitate to contact me.”
Subsequently, the insurer engaged factual investigators, Quantumcorp, to contact the claimant’s alleged employer to obtain further information. The report of Quantumcorp dated 8 September 2024 outlines numerous failed attempts to speak with Mr Fred Younan.
Quantumcorp also tried to interview the claimant, however, the interview was abandoned allegedly due to the claimant’s behaviour.
The insurer requested the claimant provide further information regarding his employment in correspondence dated 9 September 2024. The claimant responded in an email stating “you have already asked me those questions n u got the answers” (sic).
The claimant had a subsequent accident on 10 September 2024 and lodged a claim for statutory benefits with Allianz. In the claim form dated 12 September 2024 the claimant declared he was a self-employed Director of AAR Group Australian earning $2,450 per week. The subject motor accident was not disclosed in this form, despite a direct question as to whether he had ever made a CTP claim for injury.
Other material provided includes an income statement from the Australian Taxation Office (ATO) that includes confirmation of earnings for the financial year 2023-2024 from City Car Gallery of $4097.00 with superannuation reported of $450.67.
Individual taxation returns are also provided. The taxation return for the 2018 financial year details earnings from City Car Gallery totalling $24,232. For the 2019 financial year the taxation return details earnings from City Car Gallery of $18,099. The 2024 taxation includes details of employment with City Car Gallery with gross payment of $4,097. No other employment is detailed on the taxation return.
Statements from “Aware Super” are provided. For the 12 months of the 2024 financial year no employer superannuation guarantee payments were made.
SUBMISSIONS
Insurer’s initial submissions
The insurer provided initial submissions dated 29 October 2024. The submissions refer to a number of inconsistencies on the payslips provided, including incorrect calculation of superannuation. Further, it is noted that whilst the payslips refer to payments on 10 June 2024 and 17 June 2024, the corresponding payments were not made to the claimant’s bank (as per the bank statement) until 24 June 2024 and
28 June 2024.
The insurer also notes that the payslip for 10-14 June has a year to date that indicates it is the first payslip, however, the year to date for annual leave indicates it is a second payslip.
In addition, it is noted that the payslip for 17-19 June (shortened week presumably due to the motor accident) has annual leave accrued the same as for the prior payslip which was a full working week.
The insurer notes that the claimant has advised he is in New South Wales on an interim basis with no fixed address and resides in Victoria.
In terms of treatment, the insurer notes that the claimant sought treatment with a different GP (Dr Hanna) after the subsequent motor accident whereas in respect of the subject accident the claimant has attended upon Dr Khalil.
The insurer also asserts that the claimant informed them that he had not engaged in any form of paid employment, which is inconsistent with evidence provided that confirms the claimant established a business on or around 17 July 2024 and has been operating since at least 1 August 2024, and having declared to Allianz in respect of the subsequent motor accident that he was a self-employed director of AAR Group Australian earning $2,450 per week.
Ultimately, the insurer submits that the claimant has misled both insurers and has not acted honestly, due to the failure to declare the earlier accident to Allianz and failing to inform the insurer of his self-employment for the purposes of obtaining financial benefit.
Claimant’s submissions
The claimant’s previous legal representative, Mr Peter Livers of Slattery Thompson, provided very short submissions dated 2 November 2024. They simply refer to the bank statement and the ATO taxation assessments without further comment.
Claimant’s statement dated 29 November 2024
The claimant confirms being involved in two motor accidents of 19 June 2024 and
10 September 2024.
He states that on 19 June 2024 (the date of the subject accident) he was working for City Car Gallery in Bankstown as a yardsman earning about $2631 gross per week.
He states that he has not been able to work since 19 June 2024 “to date and continuing”.
The claimant states: “I obtained this employment with City Car Gallery as I used to work with them some years ago. I rang them for a job and because they know I am a good worker they asked me to commence straight away on the 10th June 2024.”
In terms of paperwork it is stated that no paperwork was received other than the two pay slips.
In terms of his business activities, the claimant confirms he is a director of AAR Group Australia Pty Ltd since 17 July 2024 and that he receives a dividend payment as a director and shareholder. He denies receiving a salary and does not perform any physical work for the company.
The claimant explains that he went to a different GP for the second accident because Dr Khalil was not available on the day, he also notes that he is on various medications which makes him drowsy, forgetful and causes a loss of concentration.
Email from claimant dated 20 January 2025
This short email indicates that some confirmation had been received from his employer about the errors on the payslips. He states that the superannuation contributions made for both relevant pay periods were made at 11%, with the 11.5% shown being a software error (given that the higher rate was not scheduled to take effect until 1 July 2024).
Insurer submissions dated 21 January 2025
These submissions confirm a number of steps taken to seek more information/documentation verifying the claimant’s allegations regarding his employment. This includes things such as copies of any written communication between the claimant and his employer.
The insurer submits that the onus in establishing that the claimant is an earner is on the claimant (see: Yin v Allianz Insurance Australia Limited [2022] NSWPICMR 5).
Issues of credit are reiterated by the insurer and “GIO maintains its submission that the payslips and letter relied upon by the claimant are unreliable and it remains the case that there is no objective contemporaneous evidence to verify the alleged employment with City Car Gallery.”
Email from claimant to the insurer and the Commission dated 21 January 2025
The claimant indicates that he is shocked and confused by the insurer’s submissions. He notes that he has been open and transparent about his efforts to rebuild his life by seeking reemployment through family members in Sydney for the purposes of relocation to spend time with his children and repair his relationship.
The claimant declines to provide unredacted bank statements and notes he has explained that he has explained the errors on his payslips.
Email from claimant to the insurer and the Commission dated 22 January 2025
The claimant explains that the claim form lodged in respect of the subsequent accident was filled out by his previous lawyer and it was his duty to disclose all relevant information truthfully that he told him.
The claimant disputes that he has two different doctors for each motor accident, pointing out that Mr Livers was also the same lawyer for both accidents.
It is asserted that his employer being a family member is not a basis for discrimination, and that his evidence is backed by official documentation from federal agencies, demonstrating honesty and transparency.
The claimant explains that there was no email communication with his employer and WhatsApp was utilised for any necessary communication.
The email states that it was drafted by a support person.
Insurer submissions dated 3 February 2025
The insurer confirms having received a document entitled “concessional contributions” that confirms a superannuation balance and confirming an amount of $450.67 was received, but with no evidence as to the date those payments were made.
The insurer confirms a request for unredacted bank statements and copies of any WhatsApp messages relating to employment.
HEARING
The claimant indicated in advance of the merit review hearing that he would not be attending via videoconference, on medical advice.
The insurer indicated objection to this stance both before the hearing and during same. The claimant became agitated at this, but eventually calmed such that some questioning could proceed.
Before the claimant was joined to the conference, Mr Fred Younan (Fred), the claimant’s brother and alleged employer, attended via videolink.
Fred confirmed the claimant commenced employment with him on 10 June 2024 on a full time basis as a yardsman with the claimant earning “roughly two grand a week.”
It was confirmed that the claimant had worked for him in the past and he stated that he was short of men and he asked the claimant if he wanted to start work. He confirmed that there was no employment contract or other documentation but there was likely a tax declaration form.
Fred stated that his employees are usually paid on a weekly basis, and that he himself processes the pays. He stated that he usually processed the pays on a Friday. However, he does not produce payslips and the accountant would do that.
In respect of the payslips that have been provided in these proceedings, Fred stated that they were not given to the claimant until they were requested because the insurer had requested same. He stated that he did not usually give payslips unless they were requested.
Fred was not able to explain why the payments in respect of the two payslips were not made until sometime after the listed payment date. He stated that he did not know but it could be that the paperwork was not in order – that his timesheets were not in.
He was questioned about why he failed to cooperate with the insurer’s investigator and he answered that he received multiple telephone calls asking the same questions over and over and he found it annoying.
After the claimant left employment Fred stated that he advertised the position and replaced him.
Communication about work was done via Whatsapp. Following the merit review hearing Fred confirmed that all such messages are deleted and are not available any longer.
Claimant’s oral evidence
As noted above the claimant was quite agitated for parts of his evidence. Firstly, when the fact the insurer objected to him not appearing via video and later when the claimant became agitated, loud and eventually terminated his participation in the conference. Accordingly, despite reassurance that staying at the conference was in his best interests the claimant left without completing his evidence. Since that time medical evidence via the claimant’s GP has been received that suggests the claimant is not medically fit to participate in the dispute process any further and a request is made that the matter be determined on the evidence given to date.
The claimant confirmed that he began work at City Car Gallery on 10 June 2025 and that he relocated to Sydney at the end of May, staying at various family member’s homes.
His duties included detailing cars, changing body trays and tyres and the like. Essentially, the claimant was required to get the vehicles ready for sale.
He stated that when he started work he signed a tax paper and nothing else.
He stated that he would be paid weekly by his brother into his bank account.
Ms Hill for the insurer questioned the claimant regarding his previous employment with City Car Gallery. The claimant confirmed that he had worked there in the past but could not be certain for the total period of time that he worked there but said that it was “definitely” over a year in duration on a continuous basis.
The claimant also confirmed that his role back then, around 2018/2019, was the same as it was at the time of the accident.
The claimant was questioned on the claim form lodged with Allianz in respect of the subsequent motor accident. He stated that his lawyer filled it out and he just signed it when asked. He also noted that he was heavily medicated at the time. In addition, the claimant stated that he cannot read and write properly and explained that he is unhappy with his previous lawyers’ conduct in respect of his claim.
When Ms Hill began to question the claimant regarding his injuries sustained in the subsequent accident, the claimant became very agitated to the point where I was unable to interject to try and explain and calm the situation. The agitation of the claimant escalated to the point where he terminated the call. However, he did state that he definitely was working, that he was an “earner” and the documents demonstrate that.
I gave the insurer the opportunity to make oral submissions where Ms Hill confirmed that the issue of credit was pressed and the various inconsistencies in the evidence were canvassed.
It is also the case that after the merit review hearing Fred Younan provided a copy of a signed taxation declaration form.
FINDINGS AND REASONS
The claimant’s credit has been put in issue by the insurer. Having considered all the evidence as a whole, I accept that the claimant’s evidence should be approached with caution.
Excluding the tax declaration form that has only been provided post the assessment conference, there is no objective evidence that pre-dates the motor accident that verifies the claimant was employed at the time of the accident.
There are numerous inconsistencies in the evidence, that can be briefly summarised as follows:
a) the claimant advised me during the assessment conference that he had asked his brother for the job. However, Fred Younan advised me that he had asked the claimant to work for him;
b) the payslips provided have been confirmed as only being created after the motor accident and only after the insurer had requested documentation. This is despite the fact that it is unlawful to not provide employees with payslips at each interval of salary payment;
c) the payslips include a number of errors that have been pointed out by the insurer. Whilst there are explanations for the errors provided, the errors remain nonetheless;
d)
perhaps most pertinently, the payslips set out payment dates of 14 and
21 June 2024, yet the corresponding bank statement inexplicably details payments in July well after the pay period and the purported payment date. This is even though Fred Younan advised that he himself processes the pays and he does so on a weekly basis at each pay run;
e) the taxation return does evidence the payments from City Car Gallery, but that is not conclusive proof of income, it is merely proof of what the claimant has declared to the Australian Taxation Office (ATO);
f) the Aware Super statement does not detail any superannuation payments made – although I note that this would not be entirely unusual given that the alleged earnings occurred at the end of the financial year that the statement is relevant to;
g) the claimant’s provided payslips suggest a annual income of over $140,000. This is despite the fact that when he previously worked for the same employer across the 2018/2019 financial years, the documented earnings in the taxation returns would suggest a significantly reduced income. This is despite the fact that the claimant confirmed that his role was the same in both sets of employment periods;
h) the claimant failed to disclose the subject motor accident in the claim form submitted to Allianz in respect of the subsequent accident. Whilst he explains that he did not fill the form out at the end, I am not persuaded that the claimant’s then legal representative failed to advise the claimant of his statutory obligations to provide correct information, before committing his signature to the document;
i) the claimant has repeatedly advised the insurer that he has not been in employment since the motor accident, yet in his claim form to Allianz he has declared income over $2,000 per week from self employment, and
j) the bank statement provided is redacted and the claimant cites privacy reasons for this. However, the information that can be elicited confirms that there were relatively significant credits to his account during the period in addition to the payments from City Car Gallery.
On account of the abovementioned inconsistencies, I am not sufficiently satisfied that on the balance of probabilities the claimant was an earner for the purposes of the MAI Act.
Whilst I acknowledge the recently provided tax declaration form, on a background of no other contemporaneous document that predates the motor accident that verifies employment, I do not consider it sufficient evidence to satisfy me that the claimant is an earner for the purposes of the Act. This is particularly so when I have viewed the claimant’s evidence with caution noting the various inconsistencies highlighted above.
It follows therefore that the reviewable decision is affirmed.
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