Gendy v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Gendy v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 59
ClaimanT:	Wagdy Gendy
Insurer:	Insurance Australia Limited t/as NRMA Insurance
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	24 October 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); meaning of pre-accident weekly earnings (PAWE); schedule 1, clause 4 of the 2017 Act; change in earning circumstances; clause 4(3) of the 2017 Act; whether earner had been earning continuously; clause 4(4) of the 2017 Act; burden of proof; balance of probabilities; duty of good faith, duty to act honesty and not to mislead; section 6.3 of the 2017 Act; duty to co-operate; section 6.24 of the 2017 Act; reliability and credibility of evidence; Held – the reviewable decision is remitted back to the insurer.

Determination

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 Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act.

The reviewable decision is remitted back to the insurer for redetermination of the claimant’s pre-accident weekly earnings following provision of further information and documents pursuant to the following directions:
(a)    Within 14 days the claimant is to provide the following to the insurer:
(i)a complete copy of all bank statements for Commonwealth bank account number 11576177, St George bank account number 488701619 and St George bank account number 426941123 for the period 1 April 2021 to date. The statements are to be in unredacted form, in sequential order and in the form of complete pages that is, with all particulars on each page clearly visible with no information cut off at the top, bottom or on either side and no redaction;
(ii)complete copies of his tax returns, notices of assessment and statements of income for the financial years ending
30 June 2021 and 30 June 2022, and
(iii)all records of work carried out for or on behalf of Site Group Pty Limited and Helpershire Pty Limited for the period 1 April 2021 to date that are in the claimant’s possession, power or control, including all employment contracts or subcontract agreements, records of payment, invoices given by or on behalf of the claimant to either entity, records of hours worked, payslips, PAYG certificates, statements of income or earnings, invoices, receipts, time cards and time sheets.
(b)    Should the claimant fail to provide all taxation documents required under (a)(ii) above, regardless of any explanation by the claimant the claimant is to provide the insurer with his written authority to the Australian Taxation Office to provide such documents to the insurer.
(c)    Within 14 days the insurer is to make a request under the claimant’s authority in the Application for Personal Injury Benefits:
(i)to Centrelink to provide direct to the insurer a complete copy of the claimant’s Centrelink file for the period 1 April 2021 to date, including all documents relating to payments to the claimant, income or earnings of the claimant and declaration of any income or earnings made to Centrelink by the claimant, and
(ii)to each of Site Group Pty Limited and Helpershire Pty Limited for the claimant’s complete personnel file for the period
1 April 2021 to date to be provided direct to the insurer, including all records of income/earnings, employment or subcontract contracts or agreements and any other documents relating to payments of any kind made to the claimant in relation to services rendered by the claimant as either employee or subcontractor or in any other capacity.
(d) The claimant is reminded of his obligations under the MAI Act to act honestly, not to mislead, to give full disclosure of all relevant information and documents and to comply with all reasonable requests for further information and documents.
The claimant’s entitlement to costs is nil.

STATEMENT OF REASONS

introduction

The claimant was involved in a motor accident on 30 April 2022.
The claimant made an application for personal injury benefits on 17 May 2022.
On 25 July 2022 the insurer determined the claimant’s pre-accident weekly earnings (PAWE) in the sum of $630.63.
The claimant contends his PAWE is $957.74 and requested an internal review of the insurer’s decision dated 25 July 2022.
On 5 August 2022 the insurer issued their internal review decision affirming their decision that PAWE is $630.63.
The claimant has requested a merit review of the insurer’s internal review decision dated 5 August 2022.

SUBMISSIONS

The claimant appears to rely on cls 4(3) and 4(4) together rather than in the alternative. However, cl 4(4) is not relevant to cl 4(3). Clause 4(4) provides the meaning of earning continuously for the purpose of cl 4(2)(a). If cl 4(3) applies, PAWE is assessed under
cl 4(2)(b).
It seems the claimant intended to submit his PAWE falls under cl 4(2)(b) on the basis there was a significant change in his earning circumstances on 14 February 2022 or in the alternative, cl 4(2)(a) on the basis he first began to earn continuously from
14 February 2022. In any event, the claimant submits the relevant period for calculation of PAWE is 14 February 2022 to 29 April 2022 (approximately 11 weeks) on the basis he had not been earning continuously during the 12 month period prior to the accident and only commenced earning from 14 February 2022.
In relation to the evidence the claimant states whilst time sheets are missing there is an obvious pattern of regular payments into his account evidencing the receipt of income.
The insurer relies on a forensic accounting report of PKF Accounting dated
21 July 2022 and submits that payments excluded by PKF are not substantiated as income on the evidence.

REASONS

General observations

Something must be said about the presentation of the claimant’s case in circumstances where:
(a) the claimant is legally represented, and
(b) the claimant has a duty under s 6.3(2) of the Motor Accident Injuries Act 2017 (MAI Act) to act honestly, not to mislead and to disclose all relevant information in a timely manner.
Submissions made by the claimant regarding several bank transactions said to be income are untenable on the current evidence. Even after PKF pointed out issues with some of the transactions, for example that a transaction on 15 March 2022 for $650 is a transfer from one account owned by the claimant to another account owned by the claimant, the claimant continues to assert it is income for the purpose of this merit review.
The claimant’s submissions contend “the insurer takes an adverse inference based on an absolutist position that because there are no timesheets for the period
14 February 2022 to 1 April 2022, that they do not reflect actual earnings from employment in that period”. The claimant submits “this is a narrow and oppressive view that firstly adopts as a filter a burden of proof beyond that required to be applied and secondly does not consider the surrounding evidence which assists in corroborating the claimant’s assertion”. However, as discussed further below it is the claimant who fails to consider the “surrounding evidence” which does not corroborate the claimant’s contention that payments with no corresponding timesheets are income, even on the civil standard of proof (balance of probabilities).
In determining whether the claimant has established PAWE in the amount alleged the Personal Injury Commission (the Commission) is informed and persuaded only by the presentation of the evidence made available to the Commission. Evidence is material which tends to persuade the Commission of the truth or probability of the facts being alleged. Evidence may be photography, documentary or testimonial, but will only succeed in persuading the Commission if it appears as being truthful, reliable and cogent. In civil cases the standard of proof depends on the balance (or preponderance) of probabilities. This simply means a party must prove their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, or the scales tip in favour of the other party, however slight, they have failed to prove their case.
The evidence demonstrates on the balance of probabilities that many transactions said to be income are not income. The claimant submits the absence of time sheets should not be fatal to whether a bank transaction is income and says the Commission should be persuaded by evidence of a deposit together with the claimant’s contention it is income to be satisfied on balance that it is income. However, the claimant’s submission ignores express evidence in the form of transaction details contained in bank statements which weighs against the claimant’s contentions. The claimant’s submissions are such that one is left wondering whether any forensic analysis of the documentary evidence was carried out by the claimant’s solicitor.
There appear to be many incorrect statements in the claimant’s submissions which do not align with the evidence. For example, the claimant contends there was a significant change in circumstances when he commenced employment with Site Group Pty Limited (Site Group) on or about 14 February 2022. However, timesheets show the claimant had been working for Site Group prior to this date and at least from
13 January 2022.
The following approach of the claimant is also concerning:
(a) the pages from bank statements provided appear to have been cherry picked such that the information is incomplete, and
(b) deficiencies in the claimant’s evidence were outlined in the PKF report yet the claimant, who is legally represented, has not provided any further documents other than some additional time sheets.
PKF requested the following additional information from the claimant:
(a)    a copy of the claimant’s 2021 Income Tax Return and notice of assessment;
(b)    copies of the claimant’s Income Statements for the 2020, 2021 and 2022 years;
(c)    a copy of the claimant’s complete bank statements for the period April 2021 to April 2022, and
(d)    copies of any payslips issued to the claimant on or around 30 April 2021, 30 June 2021 and 30 April 2022.
None of the above information has been provided by the claimant and the claimant’s submissions provide no explanation as to why these documents cannot be provided.
Pursuant to s 6.24(1) of the MAI Act the claimant must co-operate fully in respect of the claim with the insurer for the purpose of giving the other party sufficient information to be satisfied as to the validity of the claim and to assess whether the claim or any part of the claim may be fraudulent. Pursuant to s 6.24(2) the claimant must comply with any reasonable request by the insurer to furnish specified information or to produce specified documents or records. The request made by the insurer through PKF is entirely reasonable in the circumstances of this matter. Accordingly, absent any explanation from the claimant and noting the documents ought to be readily available to him (for example, if the claimant has not kept complete bank statements and does not have access to them online, he would be able to request copies from his bank), the claimant is in breach of s 6.24 of the MAI Act.
Presumably, the claimant provided certain instructions to his lawyers including that certain transactions in his bank statements represent income. However, pursuant to regulation 17 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (LPUL), a solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s instructions.
Given the obvious anomalies in the claimant’s bank statements, if proper forensic judgment had been exercised and the contentions still pressed one would expect at the very least, that these anomalies would be addressed in submissions. However, the submissions are silent on the various anomalies such as a transaction said to be income which is recorded in the statements as a transfer from the claimant to himself.
Given the above and the analysis of the evidence further below I conclude that the claimant’s contentions should be put under scrutiny. The way in which the case has been presented by the claimant makes it difficult to accept any contention of the claimant not supported by credible, reliable, cogent evidence, as the documentary evidence weighs against his contentions.

PAWE

There is no dispute that the claimant is an earner within the meaning of Schedule 1,
cl 2 of the MAI Act.
The claimant contends he has been employed by Site Group as a traffic controller since February 2022 under an ABN that is, as a subcontractor. The claimant has had an ABN since 5 April 2022. The arrangement prior to this date is unclear.
Regardless of the arrangement it is clear the claimant was employed on a casual basis that is, with no guarantee of hours or work, as would otherwise be expected in the case of permanent employment.
The claimant was also in receipt of a carer’s pension from Centrelink.
The issue under consideration in this merit review is calculation of the claimant’s PAWE.
Schedule 1, cl 4 sets out the meaning of PAWE as follows:
"(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.”
There is a question as to whether the claimant’s PAWE is to be assessed under Schedule 1, cl 4(1) or under either cl 4(2)(a) or 4(2)(b).

Clause 4(1)

The claimant has not provided sufficient evidence upon which an assessment of whether cl 4(1) applies can be undertaken. The claimant submits he commenced work with Site Group on or about 14 February 2022. However, this is clearly an incorrect statement, as time sheets show the claimant was working for Site Group in
January 2022.
The claimant bears the onus of proof and must establish on balance that he had not been working continuously for at least 12 months and therefore cl 4(1) does not apply. The claimant has an obligation to provide truthful information and disclose all relevant information and documents.
There is no statement from the claimant. However, presumably any statement of the claimant would adopt the factual assertions in his submissions and other correspondence to the insurer sent on his behalf by his solicitor. In such documents the claimant maintains that:
(a)    he had not been earning continuously for at least 12 months prior to the accident;
(b)    he commenced work with Site Group in February 2022, and
(c)    he had been paid 11 weeks of work prior to the accident during the discreet period 14 February 2022 to 29 April 2022, with no payments before
14 February 2022.
In relation to 33(b) above there is a clear statement in a letter dated 12 July 2022 from the claimant’s solicitor to the insurer that bank statements have been provided “from commencement of employment with Site Group”. The bank statements provided commence from 14 February 2022. Accordingly, the only available interpretation is that the claimant contends he first commenced employment with Site Group on or about
14 February 2022. Time sheets have since become available that show the claimant had been working for Site Group at least since January 2022. Whilst the time sheets may have only become available this is information which would be in the knowledge of the claimant. Accordingly, the claimant has breached his duty to disclose prior employment and has mislead the insurer regarding the date on which he first commenced employment with Site Group.
The evidence establishes that at the very least 33(b) and 33(c) above are incorrect. This puts into question, among other things, the reliability of the claimant’s contention at 33(a) above. Given this, and the claimant’s contentions about certain bank transactions which I consider untenable on the evidence, the reliability of any statement of the claimant is in question. Indeed, the claimant’s credibility is in issue.
Further evidence is required to determine whether the claimant had been working prior to January 2022 in any capacity. This would require the claimant to provide the following as a minimum:
(a)    his complete bank statements for the 12 month period prior to the accident (30 April 2021 to 29 April 2022) for all bank accounts held by the claimant to determine whether there is evidence of any income received prior to January 2022;
(b)    his income tax returns and notices of assessment for the financial years ending 30 June 2021 and 30 June 2022 or if no tax return was lodged, reliable evidence (for example from the Australian Taxation Office) that no tax return was lodged, and
(c)    his Centrelink records for the period 30 April 2021 to date as it is likely he had to declare income to Centrelink on an ongoing basis for purposes of calculating his pension (the insurer should request the claimant’s Centrelink file directly from Centrelink pursuant to the claimant’s authority in the Application for Personal Injury Benefits).

In the meantime, I do not have sufficient information to determine whether cl 4(1) does not apply, as contended by the claimant.

Clause 4(2)(a)

The claimant contends his PAWE should be assessed under cl 4(2)(a) on the basis he did not start earning continuously until 14 February 2022 and therefore his weekly average is to be calculated over the reduced period from 14 February 2022 to
29 April 2022. However, there is evidence the claimant had been earning through the same employer prior to 14 February 2022.
The earliest time sheet currently available commences 13 January 2022. Conveniently, the claimant has not provided bank statements prior to 14 February 2022 and therefore there is insufficient evidence upon which to reconcile the timesheets with payment to the claimant.
The burden is on the claimant to establish on balance he had not been earning prior to 14 February 2022 or had not been earning continuously prior to this date. On the current evidence I cannot be comfortably satisfied on the balance of probabilities that the claimant had not been earning continuously for any period prior to
14 February 2022.
The claimant will need to provide complete bank statements for the 12 month period prior to the accident to determine whether he received earnings prior to
14 February 2022.

Clause 4(2)(c)

It follows from the above that whether there was a significant change in earning circumstances under cl 4(3) also cannot be assessed on the current information. The claimant says the significant change was commencing employment with Site Group on or about 14 February 2022. However, documents indicate he had been working for Site Group prior to this date.
There is no evidence to suggest there was a significant change under cl 4(3) to the claimant’s employment with Site Group in February 2022 such that he became entitled to earn more on a regular basis than he had been earning from Site Group prior to February 2022. It is clear his earnings fluctuated from week to week both before and after 14 February 2022, consistent with the casual nature of the employment arrangement.
The insurer should make a direct request to Site Group pursuant to the claimant’s authority in the Application for Personal Injury Benefits for provision of the claimant’s complete file, including copies of all records of hours worked and payments to the claimant in the period commencing from 30 April 2021 to date.
Various time sheets record that invoices are to Helpershire Pty Limited ABN 95 650 639 679 (Helpershire). The claimant has not provided any information about this entity, but it suggests the claimant may have worked for Site Group through Helpershire as a third party recruitment agency or labour hire company. For example, the claimant may have been employed or subcontracted by Helpershire and in turn, Helpershire supplied the claimant as labour to Site Group on a labour hire basis and as such Site Group is the host employer. If so, Helpershire is likely to have records of the claimant’s earnings.
The insurer should conduct an ASIC search to obtain Helpershire’s contact details and in turn, request details of all payments to the claimant by Helpershire and all other documents evidencing any arrangement between Helpershire and the claimant for employment or the provision of services by the claimant to Helpershire, Site Group, or any other host employer as labour hire, a subcontractor or in any other capacity for the period from 30 April 2021 to date.
In the meantime, the information is insufficient to determine whether the claimant’s PAWE falls under cl 4(1) or under one of the exceptions to cl 4(1) under cl 4(2) because:
(a)    the available evidence suggests the claimant’s contention he commenced working for Site Group in February 2022 is incorrect;
(b)    there is evidence of work prior to this date and the extent to which the claimant worked prior to February 2022 requires investigation, and
(c)    the claimant has not provided sufficient evidence to establish on balance that he had not been earning continuously prior to 14 February 2022 or that there was a significant change under cl 4(3) on this date.
Accordingly, there is insufficient information upon which to determine the claimant’s PAWE.

Analysis of the evidence

Whilst there is insufficient information upon which to determine PAWE it is nonetheless instructive to set out the below analysis of the evidence, as the conclusions I have reached above are informed by an analysis of the evidence.
The claimant has provided a series of time sheets and partial bank records, which have potentially been cherry picked to support the claimant’s contentions and in turn, maximise weekly benefits. The bank records are limited to:
(a)    St George bank account number 426941173 (account ending 123): pages of statements limited to the period 14 February 2022 to 11 March 2022;
(b)    Commonwealth bank account number 11576177 (account ending 177): pages from the statement covering only the period 14 February 2022 to
16 May 2022, and
(c)    St George bank account number 488701619 (account ending 619) – select pages of a statement covering only the period 7 March 2022 to
22 March 2022.
There is also one page of a bank statement showing only the transaction and balance amount columns with particulars of the account, such as the account name and number, the date of the transactions and the transaction details cut off. However, an examination of this page against the transactions in account ending 177 demonstrates this is a duplicate of the page of account ending 177 showing transactions from
1 April 2022 to 16 May 2022.
The below table sets out the information available from the time sheets and bank statements provided by the claimant:

Date	Amount	Account	Transaction details	Time sheet	Comment
$387.50	13/01/22 to 14/01/2022 paid to account ending 619	The claimant has not provided bank statements covering this period.
`	$490	17/01/22 to 20/01/22 paid to account ending 123	As above
14/02/22	$890	Account ending 123	“CBA transfer”	31/01/22 to 4/02/22 paid to account ending 123	There is a corresponding time sheet and bank transaction
18/02/22	$762.50	Account ending 177	“Transfer from CBA NetBank”	7/02/22 to 10/02/22 paid to account ending 177	There is a corresponding time sheet and bank transaction
21/02/22	$600	Alleged paid to a St George account	24/01/22 to 27/01/22 paid to account ending 619	The claimant has not provided bank statements prior to 14 February 2022. The claimant’s contention he was paid for work from 24 to 27 January 2022 as late as 21 February 2022 is not consistent with the pattern of payment which shows payments are more prompt than this. The claimant’s contention suggests he was not paid for work completed 27 January 2022 until 25 days later and after being paid for work carried out on later dates. For example, on 18 February 2022 he was paid for work completed on 10 February 2022. It seems more likely that the payment recorded in the timecard was paid prior to 14 February 2022 and likely appears in the missing statements for account ending 619. The relevant pre-accident period for the purpose of taking the weekly average is therefore likely more than 11 weeks and commences on a date prior to 14 February 2022.
25/02/22	$962.28	Alleged paid to a St George account	14 to 18 Feb 2022 paid to acct 619	The claimant has not provided statements for the St George account ending 619 for the relevant period.
9/03/22	$1000	Account ending 123	“Internet deposit from 482421683”	No time sheet	Transaction details record the payment comes from account number 482421683. This account does not appear to belong to an employer of any kind because the claimant makes multiple deposits into this account. For example, on 25/2/22 he transfers $5 to this account and on 28/2/22 he transfers $50, then $10 and then another $50 to this account.
7/03/22	$200	Account ending 619	CBA Transfer	21/02/22 paid to account ending 619	There is a corresponding transaction and time sheet. It is not clear why the claimant has not included this transaction as income. Perhaps it has been excluded because the time sheet shows only one day’s work at $200 but the claimant prefers to rely on the above $1,000 deposit for this pay period.
15/03/22	$650	Account ending 619	Internet deposit from 0000426941123 (i.e., account ending 123)	No time sheet	This is a transfer from one account held by the claimant into another account held by him. The claimant has not provided the page of the statement for account ending 123 where the deposit into account ending 619 came from for the relevant date period but presumably it shows a corresponding withdrawal entry
17/03/22	$1,026.64	Account ending 619	Sri Reyansh Pty	No time sheet	No evidence the payer company has anything to do with Site Group or employment of the claimant
21/03/22	$200	Account ending 619	CBA Transfer	10/03/22 paid to account ending 619	There is a corresponding time sheet and bank transaction, although the claimant has not identified this deposit as income. Perhaps because this deposit together with other income payments of only $200 show a significant fluctuation in earnings both before and after 14 February 2022 which is inconsistent with the contention that PAWE is $957.74.
25/03/22	$387.50	Account ending 177	Transfer from CBA NetBank	14 to 15 March 2022 paid to account ending 177	There is a corresponding time sheet and bank transaction, although the claimant does not rely on this deposit
1/04/22	$770	Account ending 177	Transfer from CBA NetBank	21 to 24 March 2022 paid to account ending 177	There is a corresponding time sheet and bank transaction
$517.50	28 to 30 March 2022 paid to account ending 619	Statement for account ending 619 not provided beyond 22/03/22
15/04/22	$797.50	Account ending 177	Transfer from CBA Netbank	4 to 9 April 2022 paid to account ending 177	There is a corresponding time sheet and bank transaction
19/04/22	$531	Alleged St George	No time sheet	This is a withdrawal/transfer from the claimant’s account ending 177 to himself. The claimant has not provided statements for his St George accounts covering the date of this transaction but presumably they show the corresponding deposit coming into account ending 619 from account ending 177.
22/04/22	$847.50	Account ending 177	Transfer from CBA NetBank	11 to 14 April 2022 paid to account ending 177	There is a corresponding time sheet and bank transaction
23/04/22	$648	Alleged St George	No time sheet	There is no bank statement confirming receipt of this sum. Given the claimant received a pay deposit only one day prior on 22 April 2022 it is unlikely this deposit is income. Further, account ending 177 shows a withdrawal/transfer on the same date in the same amount to the claimant (“Transfer to Wagdy Gendy”). It therefore seems likely that a deposit of $648 in a St George account is payment by the claimant to himself.
29/04/22	$877.50	Account ending 177	CBA Netbank Transfer	19 to 22 April 2022 paid to account ending 177	There is a corresponding time sheet and bank transaction
6/5/22	$935	Account ending 177	CBA NetBank Transfer	26 to 29 April paid to account ending 177	There is a corresponding time sheet and bank transaction

Having regard to the above I will now deal with each transaction relied on by the claimant as income. In addition, I deal with other possible relevant transactions revealed by the evidence, which are not relied on by the claimant.
Where I have accepted below that any particular transaction is income I have done so based on the current material. It is clear the claimant has not given full disclosure and further information and documents are required, which might change this position.

Work period 13 to 14 January 2022: $387.50

This is likely income. However, the claimant needs to provide the relevant bank statement confirming payment and the date of payment. The evidence of work in this period suggests cl 4(1) may apply or alternatively, the relevant period under cl 4(2)(a) or (b) commences prior to 14 February 2022.

Work period 17 to 20 January 2022: $490

This is likely income. However, the claimant needs to provide the relevant bank statement confirming payment and the date of payment. The evidence of work in this period suggests cl 4(1) may apply or alternatively, the relevant period under cl 4(2)(a) or (b) commences prior to 14 February 2022.

14 February 2022: $890

I accept on balance that this deposit likely represents earnings for the period 31 to
4 February 2022.

18 February 2022: $782.50

I accept on balance that this deposit likely represents earnings for the period 7 to
10 February 2022

21 February 2022: $600

This is likely income for the period 24 to 27 January 2022. However, the claimant needs to provide the missing bank statements to verify payment, including the date of payment as it is likely the payment date is before 14 February 2022 (and not
21 February 2022 as alleged), having regard to the work period and my comments in the table above. This suggests the pre-accident period for the purpose of either cl 4(2)(a) or (b) commences prior to 14 February 2022.

25 February 2022: $962.28

This is likely income for the period 14 to 18 February 2022. However, the claimant needs to provide the missing bank statements to confirm payment.

7 March 2022: $200

I accept on balance that this deposit likely represents earnings for 21 February 2022.

9 March 2022: $1,000

I am not satisfied on the balance of probabilities that this sum represents earnings because:
(a)    there is no corresponding timesheet;
(b)    the deposit is a transfer from account number 482421683, which does not appear in the transaction detail for any other deposit in respect of which the claimant asserts is earnings;
(c)    the claimant contends there is a pattern of payments which establishes income in that payments are made “on a consistent weekly interval with very slight variances”. However, once the unsubstantiated payments are excluded the pattern is not consistent. What is consistent, however, is the narrative in the transaction detail, which shows all deposits that have a corresponding time sheet as being “Transfer from CBA NetBank” in account ending 177 and “CBA Transfer” in the St George accounts. None of the income deposits with corresponding time sheets record the payment as coming from account 482421683. This transaction is the only one and therefore suggests it is not from the same payer as other income payments, and
(d)    the claimant’s bank records show frequent payments from the claimant’s account to account 482421683 which is not indicative of account 482421683 belonging to an employer or entity to which the claimant is subcontracted. It is more consistent with the account belonging to the claimant or a family member, for example a spouse/partner, parent or child. For example, on 25 February 2022 the claimant transfers $5 to 482421683 and on 28 February 2022 the claimant makes three transfers to 482421683 in the amounts of $50, $10 and $50. I therefore do not accept on balance that the $1,000 received by the claimant from account 482421683 on
7 February 2022 is income.

15 March 2022: $650

I am not satisfied on the balance of probabilities that this is income because:
(a)    there is no corresponding time sheet;
(b)    the deposit is a transfer from the claimant’s account ending 123;
(c)    there is no evidence that the amount was first paid into account ending 123 by a third party such as an employer;
(d)    the claimant has not provided the page of his statement for 123 for on or about 15 March 2022 but presumably it shows the corresponding withdrawal, and
(e)    as this is a payment from the claimant to himself, I am not satisfied it is income received from any third party.

17 March 2022: $1,026.64

I am not satisfied on the balance of probabilities that this is income because:
(a)    there is no corresponding time sheet;
(b)    the payer is Sri Reyansh Pty a name which does not appear in any other transaction said to be income from Site Group. As noted above, there is a pattern in the transaction detail which suggests all income transactions are recorded as either “Transfer from CBA NetBank” or “CBA Transfer” so the description of “Sri Reyanish Pty” does not fit the pattern of payments from Site Group, and
(c)    there is no evidence to suggest Sri Reyansh Pty has any relationship with Site Group or has any employment (whether subcontract or otherwise) relationship with the claimant.

21 March 2022: $200

I accept on balance that this deposit likely represents earnings for 10 March 2022.

25 March 2022: $387.50

I accept on balance that this deposit likely represents earnings for 14 to
15 March 2022.

1 April 2022: $770

I accept on balance that this deposit likely represents earnings for the period 21 to
24 March 2022.

28 to 30 March 2022: $517.50

This deposit likely represents earnings for the period 28 to 30 March 2022. However, the claimant needs to provide the missing bank statements evidencing payment.

15 April 2022: $797.50

I accept on balance that this deposit likely represents earnings for the period 4 to
9 April 2022.

19 April 2022: $531

I am not satisfied on balance that this is income for the following reasons:
(a)    there is not corresponding time sheet;
(b)    the claimant has not provided the page of either of the two St George bank accounts showing transactions on or about 19 April 2022;
(c)    the claimant’s CBA account 177 shows precisely the same amount as a withdrawal on the same date with the monies transferred to the claimant. Presumably the missing St George statement shows the corresponding deposit received from the claimant’s account ending 177, and
(d)    the only evidence of this transaction is a withdrawal entry recorded as a transfer between the claimant’s accounts. There is no evidence that the claimant received this payment from Site Group, as alleged.

22 April 2022: $847.50

I accept on balance that this deposit likely represents earnings for the period 11 to
14 April 2022.

23 April 2022: $648

I am not satisfied on balance that this is income for the following reasons:
(a)    there is no corresponding time sheet;
(b)    the transaction appears as a withdrawal in account ending 177;
(c)    there is no evidence of this sum being deposited into any of the claimant’s accounts by a third party on or about 23 April 2022, and
(d)    the claimant was paid only one day prior on 22 April 2022 and a pay the following day is not consistent with the pay cycle pattern.

29 April 2022: $877

I accept on balance that this deposit likely represents earnings for the period 19 to
22 April 2022.

6 May 2022: $935

I accept on balance this deposit likely represents income for the period 26 to
29 April 2022. However, this payment was received after the accident date. Regardless of whether cl 4(1), 4(2)(a) or 4(2)(b) applies, only earnings “received” during the relevant pre-accident period are included in calculation of PAWE. Work may have been performed during the pre-accident period but if the earnings for that work were not received during the pre-accident period, they are excluded from PAWE.
Based on the above analysis, I am not satisfied on the balance of probabilities that the following alleged payments are income/earnings of the claimant:
(a)    9 March 2022, $1,000 paid from account number 482421683;
(b)    15 March 2022, $650 transferred from account ending 123;
(c)    17 March 2022, $1,026.64 paid by Sri Reyanish Pty;
(d)    19 April 2022, $531 transferred from account ending 177, and
(e)    23 April 2022, $648 transferred from account ending 177.
Accordingly, the above payments are to be excluded from calculation of PAWE.
Whilst I accept the 6 May 2022 payment of $935 is likely income it is excluded from PAWE as the payment was received by the claimant after the date of the accident.

As to the balance of the transactions:
(a) some of these require further clarification, including the date of payment, and
(b) the relevant pre-accident period over which earnings are to be averaged likely requires adjustment to the period 30 April 2021 to 29 April 2022 if the outstanding information establishes cl 4(1) applies; or to a date commencing earlier than 14 February 2022 until 29 April 2022 if the outstanding evidence establishes 4(2)(a) or (b) applies noting there is evidence of income likely received prior to 14 February 2022.
In the circumstances of this case, it would be prudent for the insurer to require the claimant to provide his bank statements for all accounts for the period 30 April 2022 to date and ongoing for as long as there is a claim for weekly payment of statutory benefits, to confirm the extent of any income received post-accident for the purpose of determining the extent of loss of income, if any, before weekly payments are made.

COSTS

The claimant seeks regulated costs of this merit review.
Pursuant to s 8.10 of the MAI Act the claimant is only entitled to costs permitted by the Regulation.
This is a dispute about the amount of statutory benefits payable under Division 3.3 of the MAI Act and is a merit review matter under Schedule 2, cl 1(a) of the MAI Act.
Pursuant to Regulation 22 and Schedule 1, cl 1 of the Regulation a merit review under Schedule 2, cl 1(a) of the MAI Act about the amount of statutory benefits payable under Division 3.3 is not a regulated merit review matter. Accordingly, costs are not permitted by the Regulation for this dispute

CONCLUSION

There is insufficient information upon which to determine the claimant’s PAWE, in particular whether cl 4(1) or one of the subclauses under 4(2) applies.
Accordingly, the matter is remitted back to the insurer for redetermination of the claimant’s PAWE following provision of further information and documents pursuant to the following directions:
(a)    Within 14 days the claimant is to provide the following to the insurer:
(i)a complete copy of all bank statements for Commonwealth bank account number 11576177, St George bank account number 488701619 and St George bank account number 426941123 for the period 1 April 2021 to date. The statements are to be in unredacted form, in sequential order and in the form of complete pages that is, with all particulars on each page clearly visible with no information cut off at the top, bottom or on either side and no redaction;
(i)complete copies of his tax returns, notices of assessment and statements of income for the financial years ending
30 June 2021 and 30 June 2022, and
(ii)all records of work carried out for or on behalf of Site Group Pty Limited and Helpershire Pty Limited for the period 1 April 2021 to date that are in the claimant’s possession, power or control, including all employment contracts or subcontract agreements, records of payment, invoices given by or on behalf of the claimant to either entity, records of hours worked, payslips, PAYG certificates, statements of income or earnings, invoices, receipts, time cards and time sheets.
(b)    Should the claimant fail to provide all taxation documents required under (a)(ii) above, regardless of any explanation by the claimant the claimant is to provide the insurer with his written authority to the Australian Taxation Office to provide such documents to the insurer.
(c)    Within 14 days the insurer is to make a request under the claimant’s authority in the Application for Personal Injury Benefits:
(i)to Centrelink to provide direct to the insurer a complete copy of the claimant’s Centrelink file for the period 1 April 2021 to date, including all documents relating to payments to the claimant, income or earnings of the claimant and declaration of any income or earnings made to Centrelink by the claimant, and
(i)to each of Site Group Pty Limited and Helpershire Pty Limited for the claimant’s complete personnel file for the period
1 April 2021 to date to be provided direct to the insurer, including all records of income/earnings, employment or subcontract contracts or agreements and any other documents relating to payments of any kind made to the claimant in relation to services rendered by the claimant as either employee or subcontractor or in any other capacity.
(d) The claimant is reminded of his obligations under the MAI Act to act honestly, not to mislead, to give full disclosure of all relevant information and documents and to comply with all reasonable requests for further information and documents.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
·        the application, reply and supporting documentation;
· the MAI Act;
·        Motor Accident Guidelines,
·        the Regulation, and
·        the LPUL.

[2022] NSWPICMR 59

24 October 2022