Iftikhar v GIO
[2021] NSWPICMR 39
•14 September 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Iftikhar v GIO [2021] NSWPICMR 39 |
| CLAIMANT: | Muhammad Iftikhar |
| INSURER: | GIO |
| MERIT REVIEWER: | Michael Sofoulis |
| DATE OF DECISION: | 14 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act2017; self-employed driver working for three ride-share companies; employed for less than 12 months prior to accident; pre-accident weekly earnings (PAWE) calculation based on claimant’s gross earnings less business expenses but before tax; application of Schedule 1, clause 4(2)(a); PAWE correctly calculated; Held – the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | 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 (MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision is: (a) affirmed 2. The claimant’s pre-accident weekly earnings (PAWE) is $1,267.66. 3. The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0 inclusive of GST. |
Background
There is a dispute between Muhammad Iftikhar and the insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the MAI Act.
The claimant was injured in a motor vehicle accident on 24 January 2021.
At date of accident the claimant was a self-employed ride share driver working for three different companies, Uber, Ola and Didi.
The claimant commenced employment as a ride share driver in July 2020.
On 10 February 2021 the claimant lodged an application for personal injury benefits.
On 9 March the insurer accepted liability to pay statutory benefits up to 26 weeks.
The insurer initially paid the claimant weekly benefits at an interim rate of $545.50 under section 3.6(5) until it had received enough information to determine the claimant’s PAWE.
On 6 April 2021 the insurer determined that the claimant’s PAWE under Division 3.3 of the Act were $1,400.64.
The claimant did not agree with this determination and on 7 April 2021 the claimant lodged an application for internal review.
The insurer conducted an internal review and an Internal Review Certificate was issued on 14 April 2021.
The Internal Review Certificate states that it affirmed the original decision however it determined that the claimant’s PAWE was $1,267.66 which in fact is a decision that has been varied to the extent that the PAWE figure was reduced.
The claimant disputes the insurer’s decision and has lodged an application for merit review with the Personal Injury Commission.
The application for merit review was lodged in accordance with section 7.12(1) of the Act and the Motor Accident Guidelines.
Submissions
The claimant submits
That the insurer’s PAWE calculation is incorrect.
That the claimant’s PAWE is closer to $2,000 per week.
That the insurer’s calculation of PAWE is not a true reflection of what the claimant earned before the accident.
The insurer submits
The claimant meets the definition of an ‘earner’.
In calculating the claimant’s PAWE the insurer has considered a number of documents including: bank account statements; ride share agreements; Business Activity Statements and ride share statements.
The claimant’s PAWE is $1,267.66.
The insurer relies on AHS v Allianz Australia Ltd [2019] NSWDRS MR 206 for the proposition that the meaning of “gross earnings” is accepted to mean income after the deduction of all business and/or work-related expenses before tax.
Reasons
There is no dispute that the claimant was an ‘earner’ for the purposes of Division 3.3 of the Act.
Nor is there a dispute that the claimant is entitled to weekly benefits under Division 3.3 of the Act.
The dispute is limited to the claimant’s pre-accident weekly benefits or PAWE.
The insurer has determined the PAWE to be $1,267.66
The claimant maintains that it is in the vicinity of $2,000.
At the insurer’s request the claimant has provided numerous documents to the insurer.
The bank statements provided indicate the claimant commenced employment as a ride share driver on or about 1 July 2020 however the claimant only provided documents with respect to earnings from 1 September 2020 until 31 December 2020.
The insurer has considered the documentation provided to calculate the income and business expenses.
Income included income from UBER, OLA and DIDI, bonuses, tips, rewards, incentive payments and referrals.
Expenses included tolls, airport fees, parking fees, petrol, car hire, service fees, city fees, other charges, government rideshare levy, insurance and third party charges.
On 6 April 2021 the insurer informed the claimant that his PAWE was $1,400.64.
Following the Internal Review process the PAWE was re-calculated and reduced to $1,267.66 based on the following calculation:
(a) $41,534.63 income - $19,604.10 (expenses) = $21,930.53 / 17.3 weeks = $1,267.66
The definition of PAWE can be found in Schedule 1 of the Act and is defined as the average weekly gross earnings of the earner in the 12 months immediately preceding the accident.
Clause 4 of Schedule 1 provides as follows:
4 MEANING OF "PRE-ACCIDENT WEEKLY EARNINGS"--GENERAL
i.(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.ii.(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--iii.(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,
iv.(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,
v.(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,
vi.(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.
vii.(2A) The
"pre-accident period" , in relation to a motor accident, is the period of 2 years immediately preceding the motor accident.viii.(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.
ix.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.
x.(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.
Because the claimant was not employed for 12 months preceding the subject accident the insurer has calculated the claimant’s PAWE under Schedule 1, clause 4(2)(a) of the Act.
Having considered the claimant’s circumstances I agree that Schedule 1, clause 4(2)(a) has been correctly applied.
Schedule 1, clause 4(2)(a) requires the insurer to determine the weekly average of gross earnings from the date the claimant began to earn continuously to immediately before the day of the motor accident.
The insurer’s approach to calculating gross earnings is consistent with AHS v Allianz Australia Ltd [2019] NSWDRS MR 206 with which I agree. That decision found that gross earnings are to be calculated after all deductions have been made but before tax.
The claimant’s submissions do not address the application of Schedule 1 clause 4(2)(a) by the insurer. Nor do they question whether the insurer has properly calculated income and expenses.
The reviewable decision was in my view, made after careful consideration of the documentation provided.
The claimant has not provided any additional documents or proof of additional income in support of the submission that the correct PAWE is closer to $2,000.
The claimant has not made any submissions with respect to the insurer’s reliance upon AHS v Allianz Australia Ltd [2019] NSWDRS MR 206 and whether it agrees with the insurer’s interpretation of “gross earnings”.
I’m satisfied that the insurer has correctly calculated the claimant’s PAWE.
Conclusion
The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the MAI Act and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act.
The reviewable decision is:
(a) affirmed
The claimant’s PAWE is $1,267.66.
The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0 inclusive of GST.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply and supporting documentation
· The MAI Act
· Motor Accident Guidelines
· Motor Accident Injuries Regulation 2017
Michael Sofoulis
Merit Reviewer
Personal Injury Commission
0
0
0