El-bortol v Allianz Australia Insurance Limited
[2023] NSWPICMR 37
•7 July 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | El-bortol v Allianz Australia Insurance Limited [2023] NSWPICMR 37 |
| ClaimanT: | Eman El-bortol |
| Insurer: | Allianz Australia Insurance Limited |
| Merit Reviewer: | Maurice Castagnet |
| DATE OF DECISION: | 7 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits under Division 3.3; where the insurer determined the claimant’s pre-accident weekly earnings under schedule 1 clause 4(1); where the claimant entered into a new contract of employment in the 12 months immediately before the day of the accident with the same employer; where there was a break of 6 days between the claimant’s previous contract of employment and the new contract of employment; where there was a significant increase in the claimant’s weekly earnings under the new contract of employment as a casual school teacher in comparison with the claimant’s weekly earnings as a temporary school teacher under her previous contract of employment; schedule 1 sub-clauses 4(2)(a), 4(3) and 4(2)(b) considered and applied; Held – the reviewable decision is set aside. |
| Determinations made: | CERTIFICATE OF DETERMINATION The reviewable decision concerns the amount of weekly payments of statutory benefits that is payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2, cl (1)(a) of the MAI Act. 1. The reviewable decision is set aside. 2. The claimant’s pre-accident weekly earnings (PAWE) are determined to be $772.39. 3. The insurer is to apply PAWE of $772.39 when determining the claimant’s entitlements under Division 3.3 of the MAI Act. 4. The effective date of this decision is 21 March 2023. |
STATEMENT OF REASONS
INTRODUCTION
In this matter there is a dispute between the claimant, Eman El-bortol and the insurer concerning the amount of weekly payments of statutory benefits that is payable to the claimant under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
BACKGROUND
The claimant is a 39-year-old woman who was injured in a motor accident on
20 March 2023.On 25 March 2023, the claimant made a claim to the insurer for statutory benefits. The claim included an application for weekly payments for loss of earnings.
On her claim form, the claimant stated that at the time of the accident, she was employed by the NSW Department of Education as a school teacher. She was working two days per week on a casual basis, earning $1,891.32 per fortnight.
On 6 April 2023, the insurer notified the claimant that it accepted liability to make weekly payments for the first 26 weeks. The insurer also notified the claimant that her pre-accident weekly earnings (PAWE) have been calculated in the amount of $506.80. (The actual amount of weekly payments that the claimant is eligible to receive is based on her PAWE, subject to the usual reductions imposed by the Division 3.3 of the MAI Act.)
The claimant disagreed with the insurer’s decision. On 11 April 2023, she sought an internal review of the insurer’s decision, submitting that her PAWE should be $945.66.
On 20 April 2023, the insurer issued a review decision setting aside its original decision and determined that the claimant’s PAWE should be revised to $527.80. The claimant disagreed with the review decision.
On 24 April 2023, the claimant made an application to the Personal Injury Commission (Commission) seeking a merit review of the insurer’s review decision.
The application is now before me for determination.
DOCUMENTS CONSIDERED
In making my decision, I considered the documents and submissions provided to the Commission by the claimant in her application and by the insurer in its reply. I considered additional documents and submissions provided by the claimant and the insurer to the Commission at my request.
I am satisfied that I have sufficient information to proceed with a determination of the dispute, on the papers.
LEGISLATION
In making my decision, I considered the following:
· the MAI Act;
· the Motor Accident Guidelines 2017 (Version 9.1) (Guidelines), and
· the Motor Accident Injuries Regulation 2017 (Regulation).
THE INSURER’S POSITION
The insurer’s submissions may be summarised as follows:
(a)the insurer accepts that the claimant is an “earner” within the definition of Schedule 1 cl 2 of the MAI Act and for the purpose of making weekly payments to the claimant under ss 3.6 and 3.7 of the MAI Act;
(b)clause 4(1) of Schedule 1 of the MAI Act provides the relevant method for calculating the claimant’s PAWE as an earner. That is the basis upon which the insurer made its review decision. The insurer’s finding was that the claimant was working as a temporary teacher at Erskine Park High School for the 12 months prior to the accident;
(c)the insurer takes the view that the claimant’s circumstances as an earner do not fall under any of the various alternative methods offered by sub-cl 4(2) of Schedule 1;
(d)in assessing the claimant’s PAWE under cl 4(1) of Schedule 1, the insurer says that the relevant 12-month period immediately before the accident was from 20 March 2022 to 19 March 2023, and
(e)the claimant’s earnings during the relevant 12-month period were $27,451.40. On that basis, the claimant’s PAWE are calculated by dividing $27,451.40 into 52 weeks to arrive at the amount of $527.91.
THE CLAIMANT’S POSITION
The claimant’s submissions may be summarised as follows:
(a)the claimant says that during the 2022 school year, she was employed as a temporary unassigned teacher by the New South Wales Department of Education, under a “Temporary Teacher Engagement Contract” (2022 contract);
(b)according to the 2022 contract, the claimant’s term of engagement was from 28 January 2022 to 26 January 2023;
(c)during her term of engagement, she was assigned to work at Erskineville High School. She worked two full school days per week for seven weeks at the beginning of the school term and then took maternity leave from
10 March 2022 to 10 November 2022. She received half pay during the maternity leave period. She then returned to work for two full days per week until the end of term in December 2022. Although she did not work after
22 December 2022, she was entitled to be paid some school holiday pay. This was paid on 5 January 2023 with a further adjustment of $172 being paid on
6 January 2023;(d)the claimant says when her 2022 contract came to an end, she reached a verbal agreement directly with the Principal of Erskine Park High School to work at the school for the 2023 school year as a casual relief teacher, commencing in Term 1 on 2 February 2023 (2023 contract);
(e)the claimant says under the 2023 contract she received a wage increase to $472.83 per day. Under the 2022 contract, she was earning $351.75 per day, and
(f)in the circumstances, the claimant says that her PAWE should be calculated on the basis of her earnings under the 2023 contract for the period commencing on 2 February 2023 to the date of the accident.
RELEVANT LEGISLATION
Division 3.3 of the MAI Act deals with weekly payments of statutory benefits to injured persons. Sections 3.6 and 3.7 deal with the entitlement to weekly payments of an “earner” such as the claimant, during the period from the date of the accident up to 78 weeks following the accident. The first period is the first 13 weeks after the accident. The second period is from weeks 14 to 78. These sections relevantly provide:
“3.6 Weekly payments during first entitlement period (first 13 weeks after motor accident)
(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the first entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of 95% of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) for the first entitlement period.
…
3.7 Weekly payments during second entitlement period (weeks 14–78 after motor accident)
(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the second entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of —(a) in the case of total loss of earning capacity—80%, or
(b) in the case of partial loss of earning capacity—85%,of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) after the first entitlement period.
…”
[Emphasis added.]Pre-accident weekly earnings is defined in cl 4(1) of Schedule 1 of the MAI Act, subject to the qualifications in sub-cls (2), (2A), (3) and (4).
Clause 4 of Schedule 1 provides:
“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 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.”
DISCUSSION
As conceded by the insurer, the claimant has satisfied the requirements of cl 2 of Schedule 1 to attain the status of an “earner”. Once the claimant has achieved that status, she is eligible to receive weekly payments of statutory benefits under ss 3.6 and 3.7 of the MAI Act for loss of earnings.
According to ss 3.6 and 3.7 of the MAI Act, the amount of weekly payments that the claimant might be eligible to receive as an “earner” in respect to loss of earnings during the first two entitlement periods is determined by calculating the difference between the injured person’s PAWE and their post-accident earning capacity.
Sub-clause 3 (1) of Schedule 1 of the MAI Act defines “loss of earnings” as a loss incurred or likely to be incurred in a person’s income from personal exertion.
Sub-clause 3(2) provides that the person’s income from personal exertion includes earnings, salaries and wages received in the capacity of employee.The injured person’s PAWE is determined by cl 4 of Schedule 1 of the MAI Act.
Clause 4 of Schedule 1 of the MAI Act provides that sub-cl 4(1) is to be applied to determine PAWE unless any of the circumstances in sub-cl 4(2) exist.
In its review decision, the insurer has applied the provisions of sub-cl 4(1) to determine the claimant’s PAWE.
Having considered the whole of the evidence, I disagree. In my view, there were circumstances in sub-cl 4(2) that were applicable to the claimant’s situation as an earner. My reasons and findings follow.
Sub-clause 4(2)(a)
Sub-clause 4(2)(a) provides that if, on the day of the motor accident, the claimant as an earner was earning continuously, but had not been earning continuously for at least 12 months, the claimant’s PAWE are the weekly average gross earnings received by the claimant as an earner during the period from when the claimant started to earn continuously to the day before the motor accident.
According to her 2022 contract, the claimant was employed as a temporary teacher with the New South Wales Department of Education and assigned to Erskine Park High School for a fixed period commencing on 28 January 2022 and ending on
26 January 2023.
27.[i]
The temporary nature of the contract is made clear in the following terms:
“This notice confirms an offer and acceptance of engagement as a temporary teacher only for the period specified above. There is not guarantee or expectation of any further or ongoing temporary employment beyond the end date specified. Circumstances may arise that lead to the dispensing of the services of a temporary teacher, including but not limited to where: the reason or purpose for employment is no longer necessary (e.g. a specified task or project is completed or a permanent teacher returns early from leave; the position is no longer temporarily vacant; additional assistance is no longer required; budget constraints including cessation of funding for the work); … Should this occur, the teacher will be given as much as notice as is reasonably possible… Acceptance of this offer does not constitute a permanent appointment to a position…” [ii]
She worked on two school days per week.
The evidence shows that under her 2022 contract, the claimant worked until the end of the school term on 22 December 2022 and received earnings up to that date. The claimant did not work for the rest of her term of engagement to 26 January 2023. [iii]However, in accordance with the terms of her 2022 contract, she received payment for the school holidays up to 26 January 2023.
As it happened, the claimant negotiated a new contract (the 2023 contract) directly with the Principal to work at the same high school in the 2023 school year commencing on
2 February 2023.In evidence is a signed letter from Mrs C McKenna, Principal, Erskine Park High School. The letter is undated but was provided to the Commission in May 2023, in response to my direction. It is appropriate to set out the contents of the letter which is as follows:
“This letter is to confirm that Eman El-bortol was employed regularly (every Tuesday & Thursday) as a casual relief teacher at Erskine Park High School in Term1 of 2023.
This was arranged through a verbal agreement with Ms.El-bortol at the beginning [sic] the year. It was our intention to continue this arrangement for the duration of 2023, however, since her accident, Ms.El-bortol has been unable to engage in casual work with us.
If you require further information, please contact the school.” [iv]The evidence shows that the claimant received earnings as a result of her work under the 2023 contract from 2 February 2023 (the start of Term 1) to the day immediately before the accident.[v]
The evidence also shows that when the 2022 contract came to an end on
26 January 2023, the claimant did not work and therefore did not receive any earnings as an earner between 27 January 2023 and 1 February 2023 (6 days)[vi]. I consider for the purposes of sub-cl 4(2)(a), it is immaterial whether the period that an earner did not receive any earnings was six days or six months. Any period in which an earner was not receiving earnings as an earner in the 12 months prior to the day of the accident would in my view, mean that the earner “had not been earning continuously”.For the purposes of sub-cl 4(4), based on the evidence of the Principal, Ms McKenna, I am satisfied that but for the accident, the claimant was likely to have continued to earn continuously for at least another six months and indeed, for the remainder of the 2023 school year.
For the above reasons, I find that claimant was not earning continuously as an earner for at least 12 months but began to earn continuously as an earner from 2 February 2023 to immediately before the day of the motor accident. On that basis, the provision of sub-cl 4(2) (a) applies to the claimant’s circumstances.
Sub-clauses 4 (3) and 4 (2)(b)
According to sub-cl 4(3) and sub-cl 4 (2) (b), if, during the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the claimant as an earner, a significant change in her earnings circumstances that resulted in the claimant regularly earning, or becoming entitled to earn, more on a weekly basis than she was earning before the change occurred, the claimant’s PAWE are the weekly average of the gross earnings received by the claimant as an earner during the period from when the change of circumstance occurred to immediately before the day of the motor accident.
The evidence shows that under the 2022 contract ending on 26 January 2023, the claimant was earning $341.13 gross per day[vii]. The evidence shows that under the 2023 contract which started on 2 February 2023, the claimant was earning $472.83 gross per day up to the date immediately before the accident[viii].
In response to my questioning at the teleconference held on 10 May 2023, the claimant said under the 2023 contract, she received an increase in her daily wage. This was because under the 2023 contract, she was employed as a casual relief teacher doing casual work for two days per week and under the 2022 contract, she was employed as a temporary teacher on a fixed contract. I accept the claimant’s evidence in that regard. It is consistent with the evidence of Ms McKenna’s provided in her signed letter to the Commission and it is consistent with the claimant’s payslips in evidence.
On the basis of the evidence, I am satisfied that the pay increase under the 2023 contract was a significant change in the claimant’s circumstances. I am satisfied that the significant change occurred as a result of the claimant’s action in accepting the 2023 contract.
It follows that I find that the claimant’s circumstances satisfy the provisions of
sub-cl 4(2) (a).
Determination of the claimant’s PAWE
The claimant started earning continuously and started earning on the basis on her increased daily wage on 2 February 2023 to immediately before the day of the accident. That day was Friday 17 March 2023, being the last school or business day before the accident on Monday 20 March 2023.
It should be noted that the determination of the claimant’s PAWE under either
sub-cl 4(2) or the combination of sub-cl 4(3) and sub-cl 4 (2) (b) would result in the same amount.I calculate the period between 2 February 2023 to 17 March 2023 to be six weeks and one day. The evidence reveals that during that period the claimant’s earnings were $4,744.68. (During that period, the claimant was off work for one week as a result of a family member being ill. This will reflect why her PAWE will be less than her normal weekly gross earnings of $945.66).
I therefore determine the claimant’s PAWE to be $772.39 ($4,744.68 divided by six weeks one day or 43 days = $772.39 average gross per week).
In conformity with s 7.13(1) of the MAI Act, my role is to decide what the correct and preferable decision is, having regard to the material before me and any applicable written or unwritten law. I have made my determination based on the material before me and having considered the facts and circumstances of the matter.
CONCLUSION
The reviewable decision is set aside.
The claimant’s PAWE are determined to be $772.39.
The insurer is to apply PAWE of $772.39 when determining the claimant’s entitlements under Division 3.3 of the MAI Act.
The effective date of this decision is 21 March 2023.
[i] AD2 – claimant’s documents.
[ii] AD2 – claimant’s documents.
[iii] Payslips – insurer’s bundle – various pages.
[iv] AD2 – claimants’ documents.
[v] Payslips – insurer’s bundle – pages 17-19, page 49.
[vi] Payslips – 15/2022, 16/2022, 17/2022, 18/2022, 19/2022 and 20/2022 – insurer’s bundle and claimant’s documents.
[vii] Payslip 13/2022 - insurer’s bundle, page 22.
[viii] Payslip 17/2022 - insurer’s bundle, page 19.
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