GIO v Tran
[2021] NSWPICMRP 4
•9 September 2021
| DETERMINATION OF MERIT REVIEW PANEL | |
| CITATION: | GIO v Tran [2021] NSWPICMRP 4 |
| CLAIMANT: | Anthony Tran |
| INSURER: | GIO |
| MERIT REVIEW PANEL MEMBERS: | Maurice Castagnet Brett Williams Ray Plibersek |
| DATE OF DECISION: | 9 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit Review Panel; weekly payments of statutory benefits; insurer disputed the claimant was an “earner”; Merit Reviewer determined that “earner” dispute was not a merit review matter; whether a dispute about “earner” is a merit review matter; whether the claimant is an “earner” as defined in Schedule 1 clause 2 of the Motor Accident Injuries Act 2017 (MAI Act); Held - resolving the question of whether an injured person is an “earner” is an essential step in determining the amount of weekly payments of statutory benefits payable under Division 3.3 of the MAI Act; a dispute in relation to “earner” falls within Schedule 2 clause 1(a) of the MAI Act and is a merit review matter; claimant is an “earner”; merit review decision set aside; matter remitted to the insurer to determine the claimant’s entitlements to weekly payments of statutory benefits in accordance with sections 3.6 and 3.7 of the MAI Act. |
| DETERMINATIONS MADE: | 1. In relation to the merit review decision by a single Merit Reviewer dated 23 February 2021, the Merit Review Panel sets aside the decision of the Merit Reviewer and finds that Mr Tran is an “earner” for the purposes of s 3.6 and s 3.7 of the Motor Accident Injuries Act 2017 (MAI Act). 2. The matter is remitted to the insurer to determine Mr Tran’s entitlements to weekly payments of statutory benefits in accordance with s 3.6 and s 3.7 of the MAI Act. 3. The Commission makes directions as set out in paragraph 16 of the Panel’s reasons. 4. A brief statement of the Panel’s reasons for this determination are attached to this Certificate. |
Background
Mr Tran suffered injury in a motor accident on 27 October 2020. He made an application for statutory benefits to the insurer dated 20 November 2020. On 11 December 2020, the insurer issued a notice to Mr Tran admitting liability for payment of statutory benefits for the first 26 weeks from the date of the accident. In a separate letter of the same date, the insurer determined that Mr Tran was not an “earner” for the purposes of s 3.6 and s 3.7. Mr Tran sought an internal review of that decision. On 30 December 2020, the internal reviewer affirmed the insurer’s earlier decision, finding that Mr Tran did not meet the definition of “earner” and, as a consequence, he was not entitled to weekly payments of statutory benefits.
Mr Tran was not satisfied with the insurer’s decision. He lodged an application for merit review with the Dispute Resolution Service. On 23 February 2021, the Merit Reviewer to whom the dispute was referred determined that the dispute about whether Mr Tran was an “earner” was not a merit review matter as declared by Sch 2 of the Motor Accident Injuries Act 2017 (MAI Act). The merit reviewer also determined that he could not make a calculation of the amount of weekly payments to which Mr Tran was entitled. He set aside the internal review decision and remitted the matter to the insurer for reconsideration.
The insurer lodged an application for review of the merit reviewer’s decision by a review panel on 20 May 2021. That application comes before us as the Merit Review Panel constituted in accordance with s 7.15 of the MAI Act.
In short, the insurer argued that Mr Tran was not an “earner” and that the Merit Reviewer erred in concluding that he did not have jurisdiction to determine whether Mr Tran was an “earner”. Mr Tran’s position is that he was an “earner” and that he is entitled to be paid weekly payments in accordance with the MAI Act.
Teleconference
The Panel convened a teleconference on 1 September 2021. Mr Tran represented himself and Mr Blayney attended for the insurer.
The purpose of convening the teleconference was to consider the information and documents supplied by the parties and to explore the early resolution of the issues or at least some of the issues.
Mr Tran provided documents including his bank records for the period 16 May 2020 to 15 November 2020.
The Panel informed the parties that it considered it did have jurisdiction to decide the issue of whether Mr Tran was an “earner” as defined by Sch 1 cl 2 of the MAI Act for the purposes of determining his entitlement to weekly payments in accordance with s 3.6 and s 3.7.
During the teleconference, by reference to his bank statements, Mr Tran confirmed that sums credited to his account on 4 September 2020 ($480), 8 October 2020 ($420), 12 October 2020 ($200) and 17 October 2020 ($222) were wages paid to him by George Maloukis for security work.
Mr Tran stated that he had also received some payments for security work on a ‘cash in hand’ basis and that he declared those funds.
In light of Mr Tran’s evidence about his earnings, the insurer was asked whether it was prepared to concede that Mr Tran was an “earner” on the basis that he was employed during the eight weeks immediately preceding the motor accident.[1] Mr Blayney sought time to obtain instructions in relation to this matter. The Panel agreed to this request and reserved its decision.
[1] See Sch 1 cl 2(a)(i) of the MAI Act.
Determination
In order to establish an entitlement to weekly payments of statutory benefits under s 3.6 and s 3.7, an injured person must establish that they are an “earner”, as defined in Sch 1 cl 2 of the MAI Act. In this regard, s 3.6 and s 3.7 are, relevantly, in the following terms:
“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)…
(3)…
(4)…
(5)…
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)…
(3)…
(4)…”
The Panel finds that resolving the question of whether an injured person is an “earner” is an essential step in determining the amount of weekly payments of statutory benefits payable, if any, under Div 3.3, specifically s 3.6 and s 3.7. That being the case, we have concluded that a dispute in relation to “earner” falls within Sch 2 cl 1(a) of the MAI Act and is a merit review matter.
On 7 September 2021 the insurer informed the Commission that it accepted that the claimant was an “earner”.
Having found that the Panel had jurisdiction to determine the issue of whether Mr Tran was an “earner” as defined by Sch 1 cl 2 of the MAI Act for the purposes of determining his entitlement to weekly payments, and the insurer having now conceded that the claimant was an “earner”, the Panel makes the following orders:
(a) In relation to the merit review decision by a single Merit Reviewer dated 23 February 2021, the Merit Review Panel sets aside the decision of the single Merit Reviewer and finds that Mr Tran is an “earner” for the purposes of s 3.6 and s 3.7 of the MAI Act.
(b) The matter is remitted to the insurer to determine Mr Tran’s entitlements to weekly payments of statutory benefits in accordance with s 3.6 and s 3.7 of the MAI Act.
Directions
To facilitate the payment of Mr Tran’s weekly payment entitlements under Div 3.3, the Panel makes the following directions:
1. Within 14 days of the date of this decision Mr Tran is to provide the insurer with the following information and documents:
(i)An explanation of the documents from Woolworths provided by Mr Tran (document AD 7 in the Commission portal).
(ii)If the documents from Woolworths relate to hours of work, Mr Tran is to provide the insurer all documents relating to his earnings from Woolworths and his period of employment with Woolworths from 1 July 2019 – 31 December 2020.
(iii)A legible copy of his ATO tax return for the financial year ending 30 June 2020.
(iv)Copies of his ATO tax return and Notice of Assessment for the financial year ending 30 June 2021 if available.
2. If the information Mr Tran is required to provide the insurer in compliance with direction 1 is not provided or not fully provided within 21 days of the date of this decision, the insurer is to determine Mr Tran’s entitlements to weekly payments of statutory benefits on the basis of the information available to the Insurer at that time.
Brett Williams
Merit Reviewer on behalf of the Review Panel
Personal Injury Commission
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