Gray v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Gray v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 6
ClaimanT:	Stephen Gray
Insurer:	Insurance Australia Limited t/as NRMA Insurance
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	2 February 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; pre-accident weekly earnings (PAWE); meaning of PAWE; schedule 1, clause 4(1); change in earning circumstances clause 4(3) and 4(2)(b); COVID-19 lockdown; interruption to earnings; COVID-19 disaster payments; earnings as an earner Held – the reviewable decision is set aside.
Determinations made:	CERTIFICATE OF DETERMINATION Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 The reviewable decision is about the amount 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. 1. The reviewable decision is: (a) set aside, and (b) the claimant’s pre-accident weekly earnings amount is $1,281.26.

STATEMENT OF REASONS

introduction

Stephen Gray (the claimant) was involved in a motor accident on 18 February 2022.
The claimant made a claim for statutory benefits under the MAI Act, including payment of weekly benefits under Division 3.3.
On 19 July 2022 the insurer determined the claimant’s pre-accident weekly earnings (PAWE) in the sum of $1,305 and determined that weekly benefits are payable from

8 March 2022 based on a certificate of fitness from Dr Stephen Howe stating the claimant is unfit from 8 to 22 March 2022.
A merit review was conducted in relation to that part of the insurer’s 19 July 2022 decision to commence payment of weekly benefits from 8 March 2022. A determination was issued on 23 September 2022 in matter M10530847/22. At the time of the determination there continued to be no certificate of fitness for any period prior to

8 March 2022.
On 30 September 2022 the claimant requested an internal review of that part of the insurer’s 19 July 2022 decision which determined the claimant’s PAWE is $1,305.
On 12 October 2022 the insurer issued their internal review decision in which the insurer concluded the claimant’s PAWE calculation falls under Schedule 1, cl 4(2)(b) of the MAI Act and determined PAWE is $1,210.24.
The claimant has requested a merit review of the insurer’s internal review decision dated 12 October 2022 regarding the amount of his PAWE.

SUBMISSIONS

The claimant contends his PAWE should be calculated by dividing total gross earnings of $74,125.41 received from the below sources in the period 18 February 2021 to

17 February 2022 by 52 weeks:
(a)
earnings from Sauce Consulting received from 15 March 2021 to

15 June 2021: $31,586.64;
(b)    COVID-19 disaster payments referred to by the claimant as “Lockdown Subsidy”, which he says were received from the government during the period 16 August 2021 to 10 October 2021: $6,000;
(c)
earnings from ICT Group (Reneworks Pty Limited) received from

2 August 2021 to 5 September 2021: $7,411.25;
(d)
earnings from ICT Group (Sight Solutions Pty Limited) received from

6 September 2021 to 12 December 2021: $27,627.52, and
(e)    a bank deposit said to be from ICT Group received on 26 October 2021: $1,500.
It therefore appears the claimant submits his PAWE falls under Schedule 1, cl 4(1) of the MAI and is $1,425.49 based on total gross earnings contended by the claimant, as set out above.
The insurer submits:
(a) the claimant’s PAWE falls under Schedule 1, cl 4(2)(b) on the basis the claimant commenced work
with a new employer (ICT Group) on

2 August 2021, which amounts to a change in circumstances under cl 4(3);
(b)
the claimant’s PAWE is therefore calculated over the 28 week period from

2 August 2021 to 17 February 2022 rather than the 52 weeks required of

cl 4(1), and
(c) COVID-19 payments are not income received by the claimant as an earner and are therefore excluded from PAWE.

REASONS

Issues

The following issues arise for determination in this merit review:
(a) whether the claimant’s PAWE falls under cl 4(1) or one of the exceptions in cl 4(2);
(b) whether the claimant’s PAWE can be adjusted under the applicable sub-clause under cl 4 to account for the impact of the COVID-19 pandemic on earnings in the pre-accident period;
(c) whether COVID-19 disaster payments are included in PAWE, and
(d) calculation of the claimant’s PAWE.

Does clause 4(1) or one of the exceptions in clause 4(2) apply to the claimant?

Pursuant to Schedule 1, cl 4 of the MAI Act “PAWE” means:
"(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.”

The claimant was 64 years of age at the time of the accident. He is now 65 years of age. He was not working as at the date of the motor accident on 18 February 2022, having ceased employment in November or December 2021[1].
[1] The claimant has stated in correspondence to the insurer he ceased in November 2021, however, there are payslips in evidence indicating the claimant continued to work for part of December 2021 and therefore did not cease work until December 2021.
The claimant contends he ceased employment in November or December 2021 in order to recover from the effects of the COVID-19 vaccination on his health and that he intended to return to work when he recovered. However, no evidence has been provided in this merit review to support this contention and it is unclear what, if any investigations the insurer has made to determine the claimant had not retired permanently from all employment as at the date of the accident. Given the claimant was not working as at the date of the accident and was nearing retirement age, some investigation into this would be prudent. For example, has the claimant accessed superannuation or received a pension since he ceased work in November or
December 2021 indicating retirement? What does the claimant’s personnel file held by his last employer say about the claimant’s reasons for leaving that employment? Alternatively, perhaps the claimant ought to be asked to furnish evidence in support of his contention that when he ceased work in November or December 2021 it was to take a temporary break from employment and not with the intention of retiring permanently from all employment. In any event, this is not an issue raised in this merit review. For present purposes, the insurer accepts the claimant is an “earner” within the meaning in the MAI Act on the basis he falls within the ambit of Schedule 1, cl 2(a), as he was injured as a result of a motor accident, is over 15 years of age, was employed or self-employed for at least 13 weeks of the 52 weeks of the year immediately preceding the accident and had not permanently retired at the date of the accident. Accordingly, this merit review proceeds on the basis the claimant is an “earner” for the purpose of the MAI Act.
Prima facie, cl 4(1) applies to calculation of the claimant’s PAWE, unless one of the exceptions in cl 4(2) applies to the claimant’s circumstances.

Does cl 4(2)(a) apply?

Clause 4(2)(a) requires that the claimant was earning continuously “on the day of the motor accident” that is, as of 18 February 2022. However, in this case the claimant had ceased earning by December 2021 and was not earning at all on the day of the motor accident. Accordingly, cl 4(2)(a) does not apply.

Does cl 4(a1) apply?

For the exception under cl 4(a1) to apply the claimant must have received earnings for at least 26 weeks during the first year of the two year pre-accident period and must not have received any earnings after the first year of the two year pre-accident period. In the claimant’s case, this means the claimant must receive all earnings (and for at least 26 weeks) in the period18 February 2021 to 17 February 2021 and no earnings in the period 18 February 2021 to 17 February 2022. As the claimant was in receipt of earnings in the second year of the two year pre-accident period that is, from/after
18 February 2021, cl 4(2)(a1) does not apply.

Does cl 4(2)(b) apply?

Clause 4(2)(b) applies, if cl 4(3) is satisfied. Clause 4(3) is satisfied if, during the 12 months before the date of the motor accident, the claimant took action that resulted in a significant change in his earnings circumstances that resulted in him regularly earning more than he had been earning before the change occurred.
The insurer says a change occurred when the claimant commenced employment with ICT Group on 2 August 2021, after ceasing employment with Sauce Consulting in
June 2021.
The available evidence establishes the following employment history relevant to whether cl 4(3) is triggered:
(a) the claimant was employed by Sauce Consulting on an annual gross salary of $130,000 and last received earnings from Sauce Consulting on
15 June 2021, and
(b) the claimant commenced work approximately six weeks later with ICT Group (then Reneworks Pty Limited) on an annual gross salary of $125,000.
Clause 4(2)(b) requires that there be a change in “earning circumstances”. For there to be “earning circumstances” a person must be an earner, meaning they were in receipt of earnings during at least some of the relevant pre-accident period. It follows from this that if a person is not in receipt of earnings they do not have “earning circumstances”. In other words, the change must be a change to what the person was receiving as earnings before the change and not a change from no earnings to beginning to earn again. When there are no earnings, a person cannot be said to have “earning circumstances”. If the latter were permitted by cl 4(3) then cl 4(2)(b) would be open to manipulation by injured persons seeking to maximise their entitlement to weekly benefits by having the period over which their PAWE is averaged commence on a later date following a return to work after an absence from work or a break in income, even for a short period.
Principles of statutory interpretation require that in deriving meaning from text, so as to fulfil the purpose of Parliament, it is a mistake to consider statutory words in isolation. The proper approach requires the derivation of the meaning of words from the legislative context in which the words appear. It requires examination, at the very least, of the sentence, often the paragraph, and the surrounding provisions to identify the meaning of the words in the context in which they are used. In other words, the meaning of the provision is to be determined by reference to the language of the instrument viewed as a whole (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
When cl 4 is read as a whole, and in conjunction with other relevant provisions such as Schedule 1, cl 2 and cl 3 and ss 3.6, 3.7 and 3.8 of the MAI Act it is clear that “earning circumstances” is intended to mean a positive circumstance of earning and not a circumstance where no earnings are received. If a person is not in receipt of earnings they do not have “earning circumstances”. Accordingly, I do not consider the insurer’s approach that because in the six week period in between jobs the claimant received no earnings and then he commenced to receive earnings from 2 August 2021 there was a change in “earning circumstances” for the purpose of cl 4(3) and in turn cl 4(2)(b). Rather, I am of the view that on a proper construction of cl 4(3) what is required is a comparison of the claimant’s earning circumstances arising from commencement of employment with ICT Group on 2 August 2021 with his most recent earning circumstances. The claimant’s most recent earning circumstances were that he last earned through Sauce Consulting. Whilst the note under cl 4(3) in the MAI Act providing examples of a change in earning circumstances is not exhaustive, the examples given (change of job, promotion, move from part-time to full-time employment or pay increase) are consistent with this approach and reinforce my view that the change must be a change in earnings previously received rather than a situation of changing from nil earnings to beginning to earn again after a break in earnings.
Gaps in employment are accommodated elsewhere in cl 4. For example, the period over which PAWE is calculated is truncated under cl 4(2)(a) for persons earning continuously as of the date of the motor accident who had not earned continuously for at least 12 months.
Whilst there was a change in earning circumstances when the claimant commenced earning with ICT Group (that is, a change from his earning circumstances through Sauce Consulting), cl 4(3) requires the change to be “significant” and for the change to result in the claimant “regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred”.
The claimant was entitled to an annual salary of $130,000 with Sauce Consulting. With ICT he became entitled to an annual salary of $125,000 which is less than he was earning or entitled to earn with Sauce. Accordingly, whilst there was a change in earning circumstances when the claimant commenced employment with ICT the change did not result in the claimant regularly earning, or becoming entitled to earn, more on a weekly basis than he was earning before the change occurred. He was in fact earning or entitled to earn more on a weekly basis through his previous earning circumstances, as his annual salary with Sauce Consulting was higher than his ICT Group annual salary.
I therefore conclude that 4(2)(b) does not apply as the change in earning circumstances from Sauce Consulting to ICT Group is not a significant change in earning circumstances resulting in the claimant earning or entitled to earn more for the purpose of cl 4(3). Clause 4(2)(b) therefore does not arise.
If cl 4(2)(b) did apply, however, I agree with the insurer’s assessment of PAWE other than a minor adjustment to the total gross earnings, as the insurer has recorded gross earnings of $33,886.77 for the period 2 August 2021 to 17 February 2022 whereas gross earnings in this period are $35,038.77. The difference appears to be the result of the insurer incorrectly recording the earnings received 26 October 2021 as $1,251.85 whereas earnings on that date were $2,403.85, as recorded in the payslip. Otherwise, I agree with the insurer that:
(a) earnings from Sauce Consulting are necessarily excluded from PAWE under cl 4(2)(b) and only income received after the change that is after
2 August 2021 can be included in PAWE;
(b) for the same reasons set out further below in this determination any COVID-19 disaster or similar payments are excluded from PAWE, even if they were received in the period 2 August 2021 to 17 February 2022, and
(c) for the same reasons set out further below in this determination I am not comfortably satisfied on balance that the claimant received an additional $1,500 in “earnings” from ICT on 26 October 2021 and accordingly, this would also be excluded from PAWE.
PAWE would therefore be $1,251.38 being total gross earnings from ICT Group from
2 August 2021 to 17 February 2022 of $35,038.77 (exclusive of COVID payments and the $1,500 bank deposit) divided by 28 weeks. However, I have concluded above that cl 4(2)(b) does not apply.

Does cl 4(2)(c) apply?

There is no evidence to suggest cl 4(2)(c) applies. The claimant is not an earner by reason of having, before the accident, entered into an arrangement to commence employment at a particular time and place after the day of the accident pursuant to Schedule 1, cl 2(b). The claimant says he ceased employment in November or December 2021 due to health issues. Whilst the claimant has contended in correspondence to the insurer that he was in discussions with an employer to recommence employment with a promotion, there is no evidence of any arrangement in place as of the date of the accident on 18 February 2022 for the claimant to return to his previous employment or commence any other employment at a particular time and place after the date of the motor accident. There must be an arrangement in place before the accident for the purpose of cl 4(2)(c). Discussions or negotiations that may have led to an arrangement being put in place are not sufficient to trigger the provision.

Conclusion regarding cl 4

As none of the exceptions under cl 4(2) apply the claimant’s PAWE falls for assessment under cl 4(1). Pursuant to clause 4(1) the claimant’s PAWE is the weekly average of the gross earnings he received as an earner during the 12 months immediately before the day on which the motor accident occurred. This period is
18 February 2021 to 17 February 2022.

Can the claimant’s PAWE be adjusted by reason of the COVID-19 pandemic

The claimant contends his actual earnings in the 12 month pre-accident period do not accurately reflect what he would have, or was entitled to earn, but for the impact of the COVID-19 pandemic on his employment. On this basis the claimant contends his PAWE should be assessed on his salary entitlement under his contract with ICT Group and not based on actual earnings received.

However, there are no provisions under the MAI Act, Motor Accident Injuries Regulation or the Motor Accident Guidelines that permit adjustment of PAWE to account for the impact of the COVID-19 pandemic on a person’s ability to earn during the pre-accident period. The reasons for this are set out by Harrison AsJ in the Supreme Court decision in Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC (Shahmiri). In Shahmiri Harrison AsJ held that pursuant to Schedule 1, cl 4(1) PAWE is to be “calculated by taking … earnings over the whole of the 12-month period immediately before the day of the accident and dividing it by 52 reflecting the number of weeks during the whole 12-month period” and that the MAI does not allow any adjustment to this by reason of the COVID-19 pandemic or other break or reduction in employment or earnings.
Accordingly, the claimant’s PAWE cannot be adjusted under cl 4(1) to account for interruption or reduction in earnings during the COVID-19 lockdown. The reasons given in Shahmiri are equally applicable to cl 4(2)(b) if the claimant’s PAWE were to fall under that exception to cl 4(1).

COVID-19 disaster payments

I have not been provided with any evidence to support the claimant’s contention he received COVID-19 disaster payments totalling $6,000 in the period from to
18 February 2021 to 17 February 2022.
Even if such payments were received in the 12 month pre-accident period, they are excluded from PAWE. This is because the claimant achieves earner status for the purpose of the MAI Act by reason of being in receipt of earnings from employment or self-employment as per the definition of earner in Schedule 1, cl 2. Pursuant to cl 4(1) and cl 4(2)(b) only earnings received by the claimant “as an earner” can be included in calculation of PAWE.
The claimant did not receive COVID-19 disaster payments “as an earner”. He did not perform any work for those payments. The claimant is not in a relationship of employee and employer with Centrelink or any other government agency who may have made the payments to him and did not render services to Centrelink or any other government agency. Accordingly, the claimant did not receive the payments in the capacity of employee or for any services rendered.
Accordingly, COVID-19 disaster payments are not earnings received by the claimant as an earner and are therefore excluded from PAWE. This conclusion is consistent with the article “COVID-19 hub for injured workers and road users” published by the State Insurance Regulatory Authority which states “COVID-19 Disaster Payments are not considered earnings for the purpose of [PAWE]”.
In addition to being consistent with the Supreme Court decision in Shahmiri, it is also consistent with the determinations in Conde v IAG [2022] NSWPICMR 28, among other merit review determinations and the recent Merit Review Panel determination in Luo v QBE Insurance (Australia) Limited [2022] NSWPICMRP 9 (22 December 2022) (Luo). The reasons given by the Panel in Luo should be taken as repeated here.
The claimant submits that the circumstances in the Conde decision are different to his own as he contends Conde was “not an earner” and related to a “different subsidy”. The first contention that Conde was not an earner is incorrect. A claimant must first meet the definition of “earner” in the MAI Act to be entitled to weekly benefits. Conde met the definition of earner albeit by reason of self-employment rather than as an employee of another. This factual difference is immaterial to the issue at hand. Once a person meets the definition of an “earner” within the meaning of the MAI Act the same principles apply whether they satisfy the definition of earner by reason of self-employment or because they were employed by another.
In relation to the type of COVID-19 disaster payment there is no evidence before me to suggest the claimant received a different type of COVID-19 disaster payment to Conde. In any event, whilst it may have been a different category of payment the same principles apply. Regardless of the classification of the claimant’s COVID-19 payment it cannot be classified as “earnings received as an earner” for the purpose of PAWE for the reasons set out above and in Luo.
Accordingly, the $6,000 in “Lockdown subsidy” the claimant contends he received during the 12 month pre-accident period is excluded from PAWE for the purpose of
cl 4(1) (and cl 4(2)(b) if it were to apply).

Calculation of the claimant’s PAWE

I have determined above that the claimant’s PAWE falls under Schedule 1, cl 4(1) of the MAI Act. Pursuant to cl 4(1) the
claimant’s PAWE is the weekly average of the gross earnings received by him as an earner during the 52 week period from

18 February 2020 to 17 February 2022.
The evidence establishes the claimant received the following gross earnings as an earner in this period:

Date payment received	Payer	Amount
15 April 2021	Sauce Consulting	$15,971.67
15 May 2021		$10,913.33
16 June 2021		$3,636.80
10 August 2021	Reneworks	$24,03.85
17 August 2021		$1,251.65
24 August 2021		$1,251.85
31 August 2021		$1,251.85
7 September er 2021		$1,251.85
14 September 2021	Sight Solutions	$1,251.85
21 September 2021		$1,251.85
28 September 2021		$1,251.85
5 October 2021		$1,251.85
12 October 2021		$1,251.85
19 October 2021		$1,251.85
26 October 2021		$2,403.85
2 November 2021		$2,403.85
9 November 2021		$2,403.85
16 November 2021		$2,403.85
23 November 2021		$2,403.85
30 November 2021		$2,403.85
7 December 2021		$2,403.85
14 December 2021		$3,289.47
Total	$66,625.41

I have already concluded above that any COVID-19 disaster or similar payments received by the claimant are excluded from PAWE and there can be no adjustment to account for the impact of COVID-19 on the claimant’s earnings in the relevant pre-accident period. Pursuant to Shahmiri, the claimant’s earnings are to be averaged over the whole of this 52 week period, regardless of any break or reduction in earnings because of the pandemic, including any lockdown period.
The claimant seeks to have an additional sum of $1,500 included in his PAWE which he said was paid by ICT Group on 26 October 2021 in addition to the amount stated in the payslip for the same payment date. The claimant says the payslip contains an error. In support of this the claimant has provided partial screenshots of what he says are his bank transactions. At least one screenshot appears to be redacted as it does not show payments between 10 August 2021and 2 November 2021 and in particular, does not show the subject 26 October 2021. Instead, this appears in a separate screenshot. The claimant has not provided his complete bank statements for the relevant period. Nor has he provided the relevant Statement of Income for tax purposes to verify an additional $1,500 in income received from ICT Group in the financial year commencing 1 July 2021. There are no independent records to verify the contention an additional $1,500 payment represents earnings received as an earner and not for something else.
If there were an error in the payslip for the payment date of 26 October 2021 resulting in it recording an underpayment of wages to the claimant on that date one would expect there to be an amended payslip issued by the employer or for the error to be rectified in the following payslip dated 2 November 2021 as such an error has tax implications for both the claimant and his employer. Accordingly, one would expect the error to be rectified in the documents to ensure both the claimant and his employer comply with their respective legal/tax obligations.
However, the subsequent payslip does not address the issue. Net year to date (YTD) earnings recorded in the 26 October 2021 payslip inclusive only of the sum of $1,752.85 and not the additional $1,500 contended by the claimant total $77,69.95 (gross YTD earnings of $9,914.95 less PAYG withholding tax $2,145). The net YTD figure in the following payslip for payment date 2 November 2021 is $9,522 ($12,318.80 less $2,796) which is an additional $1,752.85 on the previous YTD net figure in the 26 October 2021 payslip and is the same amount the claimant was paid on 2 November 2021. If the claimant received an additional $1,500 in earnings on
26 October 2021 not recorded in the payslip of that date it would be expected that the YTD net figure as of 2 November 2021 would be $11,022 and not $9,522, as stated in the payslip. There is no evidence that an additional payment of $1,500 represented earnings as opposed to something else. Accordingly, I am not satisfied the claimant received additional earnings of $1,500 from ICT Group in addition to the amount evidenced by the payslips. I therefor consider this sum is to be excluded from PAWE.
I am comfortably satisfied on balanced that the claimant’s gross earnings received as an earner in the period 18 February 2021 to 17 February 2022 total $66,625.41. The claimant’s PAWE is therefore $1,281.26 ($66,625.41 divided by 52 weeks) under Schedule 1, cl 4(1).

Certificate of capacity 18 February 2022 to 7 March 2022

Since a previous merit review determination of the issue of an absence of a certificate of capacity, the claimant has provided a certificate of capacity for the period 18 February 2022 to 7 March 2022. It is unclear from the documents whether the issue of weekly payments for the period 18 February 2022 to 7 March 2022 remains an issue in dispute between the parties. It is an issue that is not addressed in the reviewable decision that is, the internal review decision dated 12 October 2022. An internal review is required before there can be a merit review about the dispute unless the insurer has declined to conduct an internal review.
If the insurer challenges the veracity of the certificate of capacity (or declines liability to pay weekly benefits for the period 18 February 2022 to 7 March 2022 on some other basis), the insurer should clearly state this to the claimant and provide reasons together with evidence in support of the position (for example correspondence from the doctor who authored the certificate about its accuracy – it is open to the insurer to make enquiries with the doctor). Otherwise, I consider that in the circumstances outlined by the claimant the certificate of capacity ought to be accepted by the insurer, albeit the late provision of same. If there is a continuing dispute, the insurer should conduct an internal review or alternatively, state in writing that they decline to do so. Once this occurs the claimant may lodge an application for a merit review as to whether he is entitled to weekly payments in respect of the period 18 February 2022 to 7 March 2022 based on the certificate of capacity for that period now provided.

CONCLUSION

The reviewable decision is:
(a) set aside, and
(b) the claimant’s PAWE amount is $1,281.26.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the application, reply and supporting documentation;
· the MAI Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.

[2023] NSWPICMR 6

2 February 2023