Colquhoun v AAI Limited t/as GIO
[2022] NSWPICMR 43
•24 July 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Colquhoun v AAI Limited t/as GIO [2022] NSWPICMR 43 |
| CLAIMANT: | David Colquhoun |
| INSURER: | AAI Limited t/as GIO |
| MERIT REVIEWER: | Kriesen Seeneevassen |
| DATE OF DECISION: | 24 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the claimant was expressly required to undergo training, instruction or examination for the purpose of being qualified for the occupation to which the contract of service related; Schedule 1, clause 6 of the 2017 Act; whether the claimant is an earner by reason of having entered into an arrangement with an employer to undertake employment; Schedule 1, clause 4(2)(c) of the 2017 Act; Held — the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | Certificate Issued under section 7.13(4) of the Motor Accident Injuries Act 2017 The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act2017, and is therefore a merit review matter under Schedule 2(1)(a) of the Motor Accident Injuries Act 2017. 1. The reviewable decision is: affirmed. |
Background
There is a dispute between David Colqhoun (the claimant) and GIO (the insurer) regarding the amount of statutory benefits payable to the claimant under Part 3 Division 3.3 of the Motor Accident Injuries Act (2017) (the Act).
The claimant was injured in a motor vehicle accident (MVA) on his way home from work on 12 May 2021.
In his application for personal benefits dated 7 November 2021, the claimant declared that he was employed as an electrical transformer/handyman. He reported his earnings to be $1,300 gross per week.
On 17 November 2021, the insurer advised the claimant that basing themselves on his taxation notice of assessment for the period ending 30 June 2021, they had calculated his pre accident weekly earnings (PAWE) to be $1,292. The claimant’s requested a review of that decision on 10 January 2022. On 17 January 2022, the insurer advised the claimant that they had conducted the review and maintained their original decision.
On 27 January 2022, the claimant lodged a merit review application requesting that the claimant’s PAWE be increased by $158 before tax and deductions because the insurer had failed to apply Schedule 1 cl 6(2) of the Act to his circumstances. Correspondence from the claimant’s former head production manager indicates that the claimant was a trainee pursuant to Schedule 1 s 6(1)(c) of the Act.
Documents and information
On 27 April 2022, I advised the parties that I may proceed to make this decision on the papers. At the same time, I issued directions to the parties requesting them to lodge all the relevant material that they would like me to consider in conducting this merit review.
I have reviewed all the documents that the parties have made available.
Submissions
The claimant submits as follows:
(a) The claimant's circumstances were such that Schedule 1 cl 6 applied to his circumstances. His statement and the email of his former Head Production Manager establish that he was required to undergo training for the purpose of becoming further qualified for his role as a production worker.
(b) In the alternative, the claimant's circumstances fall within the definition in Schedule 1 cl 4(2)(c).
(c) The claimant’s statement, as supported by his former Head Production Manager, says that he was likely to be upgraded to level 3 production rate. The Head Production Manager had not completed the claimant’s assessment that was required for this upgrade at the time of the MVA, but he opined that "...I would be confident that he could have achieved the requirements of the next level by the end of 2021 at the latest."
(d) There is no evidence to suggest that the claimant would not have reached the level 3 production rate by 1 December 2021, entitling him to an increase in his PAWE to $1,450 from 1 December 2021, being the earnings that he could "reasonably have been expected to earn" as at 1 December 2021.
The insurer’s submissions are as follows:
(a) The claimant commenced employment with Tyree Industries on 15 October 2018 and was employed there at the time of the accident. The claimant was employed with Tyree Industries for two and a half years before the accident occurred.
(b) The claimant relies on an email from Mr George Foster dated 13 December 2021 but has not furnished a copy of the employment contract of service with Tyree Industries.
(c) The insurer submits there is no evidence that the claimant’s contract of service required him to undergo training, instruction or examination for the purpose of becoming qualified in the occupation to which the contract of service related (AFB v QBE (merit Review) [2019] NSWSIRADRS 128 (15 July 2019) at [23]-[25]).
Legislation
Schedule 1 cl 4 of the Act defines PAWE as follows:
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 received by the earner as an earner during the period from when the change of circumstance referred to in that subclause occurred to immediately before the day of the motor accident,
(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.
(3)
This subclause applies if, during the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred.
Note: Examples of a change of circumstances to which this subclause would apply include a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards.
(4)
For the purposes of this clause, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the day of the motor accident, was likely to continue for a period of at least 6 months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were being provided as at that day.
Schedule 1 clause 6 of the Act provides as follows:
(1)
This clause applies if, at the time an earner was injured in a motor accident, he or she was:
(a)
under the age of 21 years, or
(b)
an apprentice, or
(c)
employed under a contract of service under which he or she was expressly required to undergo any training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related,
(2)
In respect of any week after the motor accident in which the earner is entitled to a weekly payment under Division 3.3 the calculation of which depends on the amount of the earner's pre-accident weekly earnings, the payment is to be calculated on the basis that the earner's pre-accident weekly earnings are the weekly earnings that it is likely that he or she would have been entitled to in that week had the accident not occurred and had he or she continued in the employment
(3)
The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the weekly earnings that it is likely that an earner would have been entitled to in a week had the accident not occurred and had he or she continued in the employment concerned
Reasons
The insurer calculated the claimant’s PAWE pursuant to Schedule 1 cl 1 of the Act.
Traineeship
A claimant must have been employed under a contract of service which expressly required him to undergo training, instruction or examination for the purpose of becoming qualified in the occupation to which the contract of service related for Schedule 1 cl 6 to apply.
The claimant has not provided any evidence that it was an express requirement of his employment that he undergo any training, instruction or examination. Despite so asserting in his submission, I could not find any references in the claimant’s statement, nor in the Head Production Manager’s correspondence, that he was required to undergo training for the purpose of becoming further qualified for his role as a production worker.
I do accept the claimant’s submissions that Schedule 1 cl 6 of the Act applies to his circumstances. I am not satisfied that the claimant was employed under a contract of service which required him to undergo training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related.
Pre-accident weekly earnings
Schedule 1 cl 4 of the Act provide for a claimant’s PAWE to be calculated under Schedule 1 cl (4)(a) unless Schedule 1 cl 2 of the Act applies.
Regarding the claimant’s alternative submission that Schedule 1 cl (2()(c) applies to his circumstances, in AEX v GIO (Merit Review) [2019] NSWSIRADRS 127, Merit Reviewer Ruschen found that sub-cl 4(2)(c) applies to claimants who are not in employment at the time of the MVA but are about to become so through an arrangement prior to the MVA. Clause 4(2)(c) would be inconsistent with the operation of cls 4(2)(b) and (3) if it allowed an employed claimant’s potential earnings post the MVA to be included in the determination of their PAWE.
I agree with Merit Reviewer Ruschen.
I find that Schedule 1 cl 4(2)(c) does not apply to the claimant’s circumstances because he was already in employment at the time of the MVA.
Action taken by the earner resulting in a significant change in earnings circumstances
The insurer submits that Schedule 1 cl 3 does not apply to the claimant’s circumstances. I have not been provided with any evidence to suggest otherwise but then, the claimant does not submit that this provision applies to his circumstances.
Conclusion
The reviewable decision is:
i) affirmed.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply and supporting documentation, and
· Motor Accident Injuries Act 2017 (NSW).
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