Kozlov v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMR 2
•28 January 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Kozlov v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 2 |
CLAIMANT: | Pavel Kozlov |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
MERIT REVIEWER: | Susan McTegg |
DATE OF DECISION: | 28 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); section 6.13(2); statutory weekly payments; earner; the claimant was injured in a motor vehicle accident on 1 March 2024; claimant provided payslips which purported to show he worked from 1 April 2023 to 30 June 2023 making him an earner having worked for a period of at least 13 weeks during the year immediately preceding the accident in accordance with schedule 1 clause 2 of the MAI Act; payslips and PAYG payment summary furnished by claimant contained discrepancies; insurer asked claimant to provide bank statements or other records to verify earnings; insurer determined it had insufficient information to determine whether the claimant was an earner for the purposes of the MAI Act; claimant commenced proceedings in Commission; claimant ultimately produced bank records which contained discrepancies; Direction for Production issued by Division Head to NAB and ANZ Bank; records produced by NAB not consistent with NAB records produced by claimant; purported ANZ Bank records produced by claimant not records produced by ANZ Bank; Held – claimant was not an earner for the purposes of the MAI Act; claimant has no entitlement to weekly payment of statutory benefits pursuant to MAI Act. |
DETERMINATIONS MADE: | CERTIFICATE 1. The insurer’s decision of 9 April 2024 is set aside. 2. Mr Kozlov was not an earner for the purposes of Schedule 1 cl 2(a)(ii) of the Motor Accidents Injuries Act 2017. 3. Mr Kozlov has no entitlement to weekly payments of statutory benefits pursuant to ss 3.6 or 3.7 of the MAI Act. |
STATEMENT OF REASONS
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
Mr Pavel Kozlov (the claimant) sustained injury when he was run down as a pedestrian on 1 March 2024 (the accident).
Mr Kozlov reported injuries to his head, lower back and knees.
Insurance Australia Limited trading as NRMA (insurer) is the insurer liable to pay statutory benefits under the Motor Accident Injuries Act, 2017 (MAI Act).
This is a dispute as to whether Mr Kozlov is an earner for the purposes of the MAI Act and whether he suffered a loss of earnings.
Mr Kozlov lodged an Application for personal injury benefits dated 27 March 2024 which was received by the insurer on 2 April 2024.
On 9 April 2024 the insurer notified the claimant that the insurer had insufficient information to determine whether Mr Kozlov was an earner for the purposes of the MAI Act. The insurer noted that Mr Kozlov provided his payslips for the periods 1 September 2022 to 31 December 2022 and from 1 April 2023 to 30 June 2023 but sought the following additional information:
· bank statements to show deposit of wages to correspond with above payslips, and
· copy of Australian Taxation Office (ATO) Individual Income Statement as of 30 June 2023.
The insurer also noted, “should we determine at a later date you are considered an earner, we do not consider you have suffered loss, as you were not employed at the time of the accident therefore would have no entitlement to weekly statutory benefits”.
On 7 May 2024 the claimant requested an internal review of the insurer’s decision of 9 April 2024 to deny the claim for weekly benefits.
On 8 May 2024 the insurer acknowledged the request for an internal review and sought the following additional information:
· bank Statements to show deposit of wages to correspond with the payslips;
· a copy of an ATO Individual Income Statement as of 30 June 2023 and/or Individual Tax Returns for the financial year 2023;
· copy of Mr Kozlov’s employment contract with 187 Kent Street Pty Ltd and/or termination letter;
· Mr Kozlov’s former employer’s contact person’s name and their contact number, and
· evidence of Mr Kozlov looking for employment from February 2024 (text messages, emails, job applications etc).
On 21 May 2024 the insurer declined to conduct an internal review in accordance with clause 7.21 of the Motor Accident Guidelines (Guidelines) where the information reasonably requested by the insurer was not provided.
Subsequent to that determination but also on 21 May 2024 the claimant provided the following:
· a payment summary for the year ended 30 June 2023, and
· contact details for the claimant’s former employer.
On 21 May 2024 the insurer sought the following outstanding information:
· bank Statements to show deposit of wages to correspond with the payslips;
· a copy of an Individual Tax Return for the financial year 2023;
· a copy of Mr Kozlov’s employment contract with 187 Kent Street Pty Ltd and/or termination letter, and
· evidence of Mr Kozlov looking for employment from February 2024 (text messages, emails, job applications etc.).
On 18 June 2024 the claimant lodged an application for merit review with the Personal Injury Commission (Commission) in respect of this dispute.
This determination relates to a merit review matter which is a reviewable decision under Schedule 2(1)(a) of the MAI Act about the amount of statutory benefits payable to Mr Kozlov under Division 3.3.
LEGISLATIVE FRAMEWORK
Division 3.3 of the MAI Act provides that an earner is entitled to weekly payments of statutory payments if the person is injured “as a result of a motor vehicle accident and suffers a total or partial loss of earnings as a result of the injury”.
Together ss 3.6 and 3.7 of the MAI Act provide an entitlement to weekly payments during the first 78 weeks after a motor accident for 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.
Schedule 1 cl 2 provides a person who is injured as a result of a motor accident is an earner if the person is at least 15 years of age and who –
“(a) Was employed or self-employed (whether or not full-time) –
(i)at any time during the 8 weeks immediately preceding the motor accident, or
(ii) during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident, or
(iii)during a period or periods equal to at least 26 weeks during the 2 years immediately preceding the motor accident,
and at the date of the motor accident, had not retired permanently from all employment.”
Schedule cl 4 of the MAI Act states:
“Meaning of ‘pre-accident weekly earnings’--general
(1) Pre-accident weekly earnings’, in relation to an earner who is injured as a result of a motor accident, means the weekly average of the gross earnings received by the earner as an earner during the 12 months immediately before the day on which the motor accident occurred, unless subclause (2) applies.
(2) In the following cases, ’pre-accident weekly earnings’, in relation to an earner who is injured as a result of a motor accident, means--
(a) if, on the day of the motor accident, the earner was earning continuously, but had not been earning continuously for at least 12 months--the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the day of the motor accident,
(a1) if the earner was employed or self-employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period, but was not obtaining earnings from any source at any other time during the pre-accident period--the average weekly gross earnings received by the earner as an earner during the first year of the pre-accident period,
(b) if subclause (3) applies--the weekly average of the gross earnings the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred,
(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 insurer disputes the claimant was an earner within the meaning of schedule 1 cl 2(a) of the MAI Act. If I find the claimant was an earner there is also a dispute as to the calculation of the claimant’s pre-accident weekly earnings (PAWE).
THE EVIDENCE
Application for personal injury benefits
The Application for personal injury benefits details the injury sustained by Mr Kozlov due to the accident on 1 March 2024.
The date of birth provided is 11 June 1994 which suggests Ms Kozlov is now 30 years of age.
The “Employment Details” section of the form was left blank.
Statement of Pavlov Kozlov
In a statement dated 30 April 2024 Mr Kozlov confirmed he was employed at 187 Kent Street Pty Ltd as a manager from 1 September 2022 to 31 December 2022 and from 1 April 2023 to 30 June 2023. He worked 48 hours per week and his duties included responsibility for the smooth inter-operation of three distinct organisational areas.
Mr Kozlov states he left 187 Kent Street Pty Ltd with the intention of starting his own business. He registered the name PVK Group Holdings a year earlier. Mr Kozlov states he was unable to secure any work for his business.
Mr Kozlov commenced looking for employment in February 2024. He states by this time he had an economic imperative to return to work to earn income where he had not worked since June 2023 and nor had he received Centrelink benefits.
Mr Kozlov states on 12 February 2024, he contacted a potential employer and discussed a Manager/Lead Manager role but could not agree on mutually satisfactory terms.
Mr Kozlov states he had discussions with another potential employer for the position of General Manager on 23 February 2025 but nothing eventuated.
Mr Kozlov stated on 17 April 2024 Mr Vishal Nand, a self-employed carpenter offered Mr Kozlov employment but he was unable to accept due to his injuries.
Mr Kozlov states he currently cannot work due to his accident related injuries but if not for those symptoms he would be back at work as he needs to earn an income to cover his living expenses.
Statement of Vishal Nand
In a statement dated 17 April 2024 Mr Nand states he is a qualified carpenter by trade and runs his own business. He confirmed he would employ Mr Kozlov on a full time basis in his company but has been informed he is unable to commence employment due to medical advice.
Payment summary for the year ending 30 June 2023
The Pay as You Go (PAYG) payment summary issued by 187 Kent Street Pty Ltd showed gross earnings in the sum of $88,704 and tax withheld in the sum of $25,907.
Employer details
In an email dated 21 May 2024 Mr Masselos, the claimant’s then lawyer, indicated the name of the claimant’s employer was Jason Li. His telephone number was also provided.
In submissions the insurer advised an investigator from Quantumcorp Australia had made numerous attempts to contact Mr Li without success.
Certificate of capacity/certificate of fitness
A certificate of capacity/certificate of fitness issued by Dr Sharron Phillipson on 26 March 2024 certified the claimant unfit for work from 26 March 2024 to 26 April 2024.
Payslips from 187 Kent Street Pty Ltd (Australian Business Number (ABN) 30 096 964 671)
Payslips provided by the claimant purport to demonstrate the following earnings:
Pay Period
Payment Date
Gross Pay
Net Pay
01/09/2022 – 01/10/2022
14/09/2022
$12,672
$8,971
01/10/2022 – 31/10/2022
12/10/2022
$12,672
$8,971
01/11/2022 – 30/11/2022
15/11/2022
$12,672
$8,971
01/12/2022 – 31/12/2022
14/12/2022
$12,672
$8,971
01/04/2023 – 31/04/2023
12/04/2023
$12,672
$8,971
01/05/2023 – 30/05/2023
17/05/2023
$12,672
$8,971
01/06/2023 – 31/06/2023
14/06/2023
$12,672
$8,971
There are some discrepancies in the records furnished by the claimant. The payslip for the period commencing 1 September 2022 nominates 1 October 2022 as the end of the pay period whilst subsequent payslips seem to nominate the last day of each month as the end of each pay period.
Furthermore, there are 30 days in April, 31 days in May and 30 days in June and not 31 days in April, 30 days in May or 31 days in June as suggested by the payslips.
The insurer also points out that the company is registered as 187 Kent Pty Ltd and not 187 Kent Street Pty Ltd as recorded on the payslips.
CLAIMANT’S SUBMISSIONS
The claimant provided submissions dated 18 June 2024.
The claimant’s submissions responded to the insurer’s determination that the claimant had not suffered a loss because he was not employed at the time of the accident and therefore, had no entitlement to weekly statutory benefits.
The claimant was apparently under the mistaken understanding that the insurer did not determine the claimant was not an earner.
The claimant submits that he ceased employment with 187 Kent Street Pty Ltd with the intention of commencing his own business. Where that was not successful he decided he needed to return to paid employment to support himself, noting he had not claimed Centrelink benefits. The claimant refers to his attempts to secure work described in his statement.
The claimant states a similar argument was raised by an insurer in the decision of AFU v Allianz (Merit Review) [2019] NSWSIRADRS 147 where a claimant injured in a motor vehicle accident on 5 April 2019 had not worked since December 2018 on the basis she had taken a break from work with the intention of re-entering the workforce after the school holidays. The Member set aside the insurer’s decision and determined based on the evidence in her statutory declaration that she had not retired permanently from all employment.
The claimant submits in line with that decision he had not retired, his work qualified him as an earner within the definition of the MAI Act and he was making efforts to find employment at the time of the accident. Contrary to the insurer’s decision he has suffered a loss and he is not precluded from an entitlement to weekly benefits because he was not employed at the time of the accident.
INSURER’S SUBMISSIONS
The insurer provided submissions dated 26 June 2024. The insurer concedes the payslips from 187 Kent Street Pty Ltd for the period 1 April 2024 to 30 June 2024 may indicate Mr Kozlov satisfies schedule 1 clause 2(a)(ii) of the MAI Act. However, the insurer states that the payslips contain errors which cannot be ignored.
The insurer also notes that in order to satisfy cl 2(a)(ii) the claimant needs to demonstrate that he had not retired permanently from all employment. The insurer submits the statement from Mr Kozlov that he was looking for employment is not supported by any evidence such as text messages, emails or job applications.
The insurer submits in the absence of the additional information sought on 21 May 2024 the insurer has not been able to determine whether Mr Kozlov is an earner for the purposes of the MAI Act and whether he suffered or was likely to suffer a loss in income from personal exertion.
TELECONFERENCE ON 7 AUGUST 2024
I conducted a teleconference on 7 August 2024. Mr Greg Masselos of Masselos & Co Lawyers appeared for the claimant and Ms Vitalina Pleskach appeared for the insurer.
I indicated my preliminary view was I was satisfied the claimant had not retired permanently from all employment notwithstanding he was not employed at the date of accident.
Subject to being satisfied as to the claimant’s employment between 1 April 2023 and 30 June 2023 I indicated my preliminary view was that Mr Kozlov was employed for a period of 13 weeks during the year immediately preceding the accident and would meet the definition of earner under clause 2(a)(ii) of schedule 1 of the MAI Act.
Furthermore, subject to being satisfied as to the claimant’s employment between 1 April 2023 and 30 June 2023 I indicated my preliminary view is that the pre-accident weekly earnings (PAWE) may be calculated under Schedule 1, cl 4(1) of the MAI Act.
However, I raised the insurer’s concern about the discrepancy in the records provided by the claimant, noting this was why the insurer had asked the claimant to provide further records to verify his earnings. Ms Pleskash also indicated that whilst the claimant had provided a contact name for the employer, Mr Jason Li and a mobile phone number the insurer had not been able to contact Mr Li. Ms Pleskach indicated a landline or email may assist the insurer in contacting Mr Li.
I suggested production of the claimant’s bank statements showing the deposits referrable to the payslips during the period 1 April 2023 to 30 June 2023 may readily allay any concern about those discrepancies.
I directed the claimant on or before 21 August 2024 to serve on the insurer and upload to the portal documentation, preferably bank statements, to verify his earnings between 1 April 2023 and 30 June 2023 and stood the matter over for a further teleconference on 23 August 2024.
TELECONFERENCE ON 23 AUGUST 2024
The matter was listed for a further teleconference on 23 August 2024. Ms Pleskach appeared for the insurer. Mr Masselos for the claimant informed me he had lost contact with the claimant. He said he last spoke to the claimant shortly before 21 August 2024 when Mr Kozlov said he was having trouble accessing his bank statements online and he was going to go into the bank to obtain copies.
Mr Masselos was unaware of the reason he could not contact the claimant but where he could not rule out the possibility of an accident or other untoward event he asked if the matter could be adjourned.
Masselos & Co filed a Notice of Ceasing to Act dated 26 September 2024 on 2 October 2024.
TELECONFERENCE ON 9 OCTOBER 2024.
Ms Pleskach appeared for the insurer. There was no appearance on behalf of the claimant although I was subsequently informed he contacted the Registry to try and join the teleconference but some confusion ensued and that did not occur. I adjourned the matter for a further teleconference on 16 October 2024.
TELECONFERENCE ON 16 OCTOBER 2024
Mr Kozlov appeared in person. Ms Vitalina Pleskach appeared for the insurer.
Mr Kozlov informed me he had not been provided with a copy of my earlier reports. I indicted I would ask the Dispute Officer to make them available to him.
No further documentation had been uploaded to verify the claimant’s earnings.
I explained to Mr Kozlov the discrepancies in the payslips and the PAYG summary he had provided.
Mr Kozlov said he understood he had been asked to provide bank statements but technical difficulties had prevented him from doing so. He asked if the matter could be further adjourned to give him an opportunity to go into the bank to obtain the bank statements. He also asked if there was any chance of an interim payment being made.
I advised Mr Kozlov the insurer would not make an interim payment in the absence of records to verify the payslips he had furnished. I suggested he obtain the bank statements urgently and provide them to the insurer and to the Commission. Ms Pleskach confirmed on receipt of the bank statements the insurer will review the matter and determine if he is entitled to payment of statutory benefits.
I directed the claimant on or before 23 October 2024 to serve on the insurer and upload to the portal documentation, preferably bank statements, to verify his earnings between 1 April 2023 and 30 June 2023. I listed the matter for a further teleconference on 30 October 2024.
TELECONFERENCE ON 30 OCTOBER 2024
Mr Kozlov appeared in person. Ms Pleskach appeared for the insurer.
Mr Kozlov said he had retrieved bank statements from the National Australia Bank (NAB) for the periods:
· 1 March 2023 to 13 April 2023;
· 14 April 2023 to 4 May 2023, and
· 5 May 2023 to 12 May 2023.
Mr Kozlov said he was unable to access bank statements for the period 13 May 2023 to 30 June 2023 even though he had called the Customer Service Department. He said the account was closed and although it was well after that date there seemed to be some sort of issue which was preventing him from accessing the bank statements after 13 May 2023.
I suggested Mr Kozlov go into a NAB branch to follow up those statements. He submitted that where the bank statement for the period 1 March 2023 to 13 April 2023 showed the deposit of $8,971 on 12 April 2023 the insurer might be prepared to make a determination in his favour. He stated he had not received any income for six or seven months and he was experiencing financial hardship.
I explained to Mr Kozlov that he needed to satisfy the insurer that he had worked for a period of 13 weeks during the year immediately preceding the accident. Ms Pleskach confirmed that the insurer will not be able to make a decision without the bank statements from 1 April 2023 to 30 June 2023 and verification of the payments referred to in the payslips.
I reminded Mr Kozlov where the payments were deposited into the nominated NAB account he should be able to obtain a copy of the statements, although he may need to go into a NAB branch.
I informed Mr Kozlov in the absence of the bank statements from 1 April 2023 to 30 June 2023 showing the relevant payments it was unlikely I would be satisfied that he had worked for a period of 12 weeks during the year immediately preceding the accident and in that event I would not direct the insurer to pay to him statutory benefits.
Mr Kozlov asked for a further period of time to provide “everything”. I indicated I would allow him a further period of seven days to provide any further documentation and thereafter I will issue a decision within 21 days.
I directed Mr Kozlov to serve on the insurer and upload to the portal (or provide by email) documentation, preferably bank statements, to verify his earnings between 1 April 2023 and 30 June 2023. I indicated I would provide a determination on the dispute on or before 26 November 2024.
FURTHER PROCEDURAL EVENTS
On 4 November 2024 following receipt of a message from the insurer I caused the following message to be sent to the parties:
“Mr Kozlov, Ms Pleskach has made enquiries with the National Australia Bank. She was advised that bank statements for closed accounts are accessible for up to 7 years. She was also advised the statements can be requested over the phone.
Mr Kozlov I remind you that on or before 5 November 2024 you are to serve on the insurer and upload to the portal (or provide by email) documentation, preferably bank statements, to verify your earnings between 1 April 2023 and 30 June 2023. According to the advice Ms Pleskach received from the Bank you should be able to readily access bank statements to verify your earnings during that period.”
SUBMISSIONS AND EVIDENCE LODGED BY THE CLAIMANT
On 6 November 2024 Mr Kozlov uploaded to the portal undated submissions in which he described the attempts he had made to access bank statements from his nominated NAB account. He stated he was only able to download three individual bank statements for the relevant 12 month period. He confirmed the statement from 1 March 2023 to 13 April 2023 showed the deposit on 12 April 2023. However, the statements from 14 April 2023 to 4 May 2023 and from 5 May 2023 to 12 May 2023 do not show the salary payments he alleges were made on 17 May 2023 and 14 June 2023.
Mr Kozlov stated he had managed to access an email address used at the time of his employment during 2023 which included three documents titled “Lodgement Receipt – Pay Anyone” issued by the Australia and New Zealand Banking Group Limited (ANZ). Mr Kozlov asserted those three documents show the three salary transfers from April to June 2023 and should satisfy the insurer and myself that he was an earner under the MAI Act.
Mr Kozlov uploaded to the portal on 6 November 2024 a document which reads:
Lodgement Receipt – Pay Anyone
From Account:
From: ANZ Business Extra
Your business name: 187 Kent Pty Ltd
Payment Details
Payee name: Pavel Kozlov
BSB Number: [redacted]
Account Number: [redacted]
Reference; Salary Direct Credit
Amount: $8,971.00
Transfer Details:
Transfer instructions: Pay no later than 12/04/2023
Lodgement Number: Redacted
Receipt Number: Available after transfer has been made.
On 6 November 2024 Mr Kozlov uploaded a second document which reads:
Lodgement Receipt – Pay Anyone
From Account:
From: ANZ Business Extra
Your business name: 187 Kent Pty Ltd
Payment Details
Payee name: Pavel Kozlov
BSB Number: [redacted]
Account Number: [redacted]
Reference; Salary Direct Credit
Amount: $8,971.00
Transfer Details:
Transfer instructions: Pay no later than 17/05/2023
Lodgement Number: Redacted
Receipt Number: Available after transfer has been made.
On 6 November 2024 Mr Kozlov uploaded a third document which reads:
Lodgement Receipt – Pay Anyone
From Account:
From: ANZ Business Extra
Your business name: 187 Kent Pty Ltd
Payment Details
Payee name: Pavel Kozlov
BSB Number: [redacted]
Account Number: [redacted]
Reference; Salary Direct Credit
Amount: $8,971.00
Transfer Details:
Transfer instructions: Pay no later than 14/06/2023
Lodgement Number: Redacted
Receipt Number: Available after transfer has been made.
On 6 November 2024 Mr Kozlov also uploaded a NAB bank statement in the name of Pavel Victorovich Kozlov, BSB number [redacted], Account number [redacted] for the period 15 March 2023 to 13 April 2023 which purports to show a deposit of $8,971 on 12 April 2023 by 187 Kent Pty Ltd, described as Direct Credit Salary.
INSURER’S SUBMISSIONS
The insurer provided submission dated 8 November 2024 raising some discrepancies in the documents furnished by the claimant on 6 November 2024. Those discrepancies in the NAB statement covering the period 15 March 2023 to 13 April 2023 relate to the following:
(a) the form of the number “1” as it appears in relation to the transfer from 187 Kent Pty Ltd;
(b) that the number “8” appears to be positioned on a slightly higher level than the other numbers in the transaction;
(c) that the numbers “4”, “7”, “3” and “9” are not aligned with the text “Kent Ptd Ltd” and “Direct Credit Salary”, and
(d) that the number “0” as it appears in the transaction involving 187 Kent Pty Ltd is typed as “o” whilst in other transactions it is shown as “0”.
The insurer also noted that the ANZ lodgement receipts demonstrated the following identical mark on all documents:
[IMAGE UNABLE TO RENDER]
Having regard to these discrepancies the insurer sought leave to file and serve a Direction for Production on both NAB and ANZ.
In response to the insurer’s submissions, I caused the following message to be sent to the parties:
“Mr Kozlov the insurer has provided further submissions dated 8 November 2024 raising a number of discrepancies in respect of the bank records you have produced in support of your application for statutory benefits.
Ms Pleskach has sought leave to issue Directions for Production to the National Australia Bank Limited (NAB) and to the Australian and New Zealand Banking Group (ANZ) for the relevant records. I think that is a good idea but as a Merit Reviewer I do not have power to issue a Direction for Production. However, if the insurer uploads each Direction for Production they can be referred to the Division Head under s 49(6) of the Personal Injury Commission Act, 2020. The Division Head has the power to approve each Direction for Production.
Ms Kozlov if the insurer proceeds with the Application to issue Directions for Production to both NAB and ANZ I will defer providing a determination on the dispute before me until 21 days after the return date.”
On 25 November 2024 I caused the following further message to be sent to the parties:
“I refer to my message dated 12 November 2024. I understand Directions for Production have been issued by the Division Head and are to be served on the National Australia Bank Limited (NAB) and to the Australian and New Zealand Banking Group (ANZ) for the relevant records.
Noting those documents are not due until 4 December 2024 I vacate the Direction I made on 30 October 2024 that I would provide a determination on the dispute on or before 26 November 2024.
At this stage I do not propose to indicate a date when my determination will be provided on the basis that both parties may wish to provide further submissions on production of records by both the NAB and ANZ.
I will review the matter on or before 11 December 2024 to determine the best way to proceed depending on the production of those records.”
In response to concerns raised by the claimant, on 9 December 2025 I caused the following further message to be sent to the parties:
“Mr Kozlov whilst I understand your concern about the delay in finalisation of this matter the records you produced purporting to be from the National Australia Bank and from the ANZ Bank have given rise to questions about the veracity of those records.
As you are aware the President of the Commission granted leave for Directions for Production to be served on each Bank. The National Australia Bank has now sought an extension of time to respond to the Direction for Production to 18 December 2024. Furthermore, on 29 November 2024 Ms Pleskach asked the ANZ Bank to confirm whether the Notices you provided were issued by ANZ. A response is yet to be received.
Given the difficulty you initially experienced Mr Kozlov in accessing records from these two banks and given the concern about the veracity of the documents ultimately produced I am not able to determine this dispute until there has been compliance with each Direction for Production.
Noting the NAB is not able to respond until 18 December 2024 I will no longer be able to review the matter on 11 December 2024.
Accordingly, I propose to list the matter for a further teleconference on Friday 10 January 2025 at 10.30 am.”
RESPONSE BY ANZ TO DIRECTION FOR PRODUCTION
The schedule to the Direction for Production to ANZ was in the following terms:
“1. This direction for production of any documents confirming payments made from ANZ Business Extra (Business name: 187 Kent Pty Ltd) to the following account: Payee Name: Pavel Kozlov; BSB: [redacted]; Acc Number: [redacted], for the period from 01 April 2023 to 30 June 2023.
2. Verification of the authenticity of the Lodgement Receipts issued by ANZ on 12 April 2023, 17 May 2023, and 14 June 2023, attached to this Direction for Production.”
On 28 November 2024 ANZ sent an email to the insurer in respect of the Direction for Production stating:
“With regards to the below request we are unable to locate the customer listed with the information provided in the notice. We would require additional information (Account number / ACN / ABN) to identify the customer as the details provided to us may be incomplete / incorrect.
Should you have any questions, please contact ANZ quoting reference [redacted].”
The insurer responded on 29 November 2024 stating:
“The organisation name is 187 Kent Pty Ltd, ABN: 30*****71. Unfortunately, this is all information we have.
As indicated in the Direction for Production, would you be able to advise whether the notices provided were issued by ANZ? I have attached them again for convenience.”
In a letter dated 3 December 2024 ANZ stated a search of ANZ systems failed to locate any documents as outlined in the notice schedule.
In response to the email from the insurer of 29 November 2024 ANZ in an email dated 10 December 2024 stated inter alia,
“Entity Name: 187 KENT PTY LTD
We are able to locate the above entity in our database with provided information, however, no accounts have been identified as being currently held either solely/jointly with the Bank by the customer listed in your Notice.
For the confirmation of provided notices – we are contacting internal team for the confirmation, once we receive the information we will give an update on priority”.
DOCUMENTS PRODUCED BY NAB IN RESPONSE TO DIRECTION FOR PRODUCTION
NAB produced the following statements in respect to the Direction for Production:
(a) account [redacted] – statement from 15 December 2022 to 14 June 2023;
(b) account [redacted] – statement from 15 June 2023 to 14 December 2023;
(c) account [redacted] – statement from 15 September 2022 to 14 March 2023;
(d) account [redacted] – statement from 15 March 2023 to 14 September 2023;
(e) account [redacted] – statement from 15 March 2023 to 13 April 2023;
(f) account [redacted] – statement from 14 April 2023 to 4 May 2023;
(g) account [redacted] – statement from 5 May 2023 to 12 May 2023;
(h) account [redacted] – statement from 13 May 2023 to 14 July 2023, and
(i) account [redacted] – statement from 15 July 2023 to 14 July 2023.
NAB also produced credit card statements. I do not propose to identify those records where they are not relevant to this dispute.
The purported payments of $8,971 on 12 April 2023, 17 May 2023 and 14 June 2023 do not appear on the statements relating to account number [redacted].
TELECONFERENCE ON 10 JANUARY 2025
Ms Pleskach appeared for the insurer. There was no appearance by the claimant, although a number of attempts to contact him were made by the Dispute Officer and the teleconference was deferred until 11.00am in the event Mr Kozlov was simply delayed.
I was informed the Dispute Officer attempted to contact Mr Kozlov the preceding day without success. She was unable to leave a message. She also sent Mr Kozlov an email to remind him the matter was listed for teleconference on 10 January 2025.
Ms Pleskach informed me Mr Kozlov contacted the insurer on 3 January 2025 to ask when he would receive his weekly benefits. He was advised the insurer would not make any payments pending my decision.
At 11.00am there was still no appearance from the claimant. Ms Sore, the Dispute Officer again attempted to contact him by telephone without success.
I indicated I would determine the matter and issue a decision within 14 days.
DIRECTION DATED 13 JANUARY 2025
In a direction dated 13 January 2025 I noted the failure of Mr Kozlov to appear at the preliminary conference on 10 January 2025. Having regard to that non-attendance and where Mr Kozlov had not had an opportunity to respond to the records produced by the NAB and the ANZ Bank I vacated the direction I made on 10 January 2025 where I undertook to determine the dispute on or before 24 January 2025. I made the following further directions:
·on or before 22 January 2025 Mr Kozlov to provide any submissions on which he wishes to rely addressing the discrepancies between the records he provided and the records produced by the NAB and ANZ respectively.
·On or before 29 January 2025 the insurer is to provide any submissions in response to submissions, if any provided by the claimant.
·I will determine the dispute on or before 5 February 2025.
No further submissions have been received from Mr Kozlov.
REASONS
Has the insurer made a reviewable decision
Mr Kozlov lodged an application for personal injury benefits dated 27 March 2024.
On 9 April 2024 the insurer notified Mr Kozlov it had insufficient evidence to determine whether Mr Kozlov was an earner for the purposes of the MAI Act and asked Mr Kozlov to provide banks statements and a copy of his ATO Individual Income Statement as of 30 June 2023.
Mr Kozlov sought an internal review of the insurer’s decision on 7 May 2024 and on 8 May 2024 the insurer again asked Mr Kozlov to provide additional information as set out in paragraph 11 of this decision.
On 21 May 2024 the insurer declined to conduct an internal review on the basis the information reasonably requested by the insurer was not provided.
Version 9.3 of the Motor Accident Guidelines (the Guidelines) commenced on 6 December 2024 and applies to this claim. Clause 7.21 of the Guidelines permits the insurer to decline to conduct an internal review whether the claimant has not provided the insurer with the information reasonably requested. There can be no objection to the failure of the insurer to conduct an internal review.
Section 7.13(1) of the MAI Act permits me in determining a merit review application to decide what the correct and preferable decision is having regard to the material before me including:
(a) any relevant factual material, and
(b) any applicable written or unwritten law.
Section 7.13(2) provides the merit reviewer with the power to exercise all of the functions conferred or imposed by or under this Act on the insurer. Where s 7.13(4) states the merit reviewer may decide to affirm, vary or set aside the reviewable decision I am satisfied that the reviewable decision, in circumstances where the insurer refused to conduct an internal review, is the insurer’s initial decision.
Accordingly, I find the decision for review is whether the insurer had sufficient evidence to make a determination that Mr Kozlov was an earner. That decision effectively meant Mr Kozlov was not entitled to weekly statutory benefits. Having regard to the exercise of power under s 7.13(2) of the MAI Act I am satisfied that in exercising all the functions that are conferred or imposed on the insurer under the Act, I am also entitled to determine whether Mr Kozlov has an entitlement to weekly statutory benefits.
Did the insurer had sufficient evidence to determine that Mr Kozlov was an earner.
Having regard to the discrepancy in the payslips furnished by Mr Kozlov I find the insurer was entitled to determine it had insufficient evidence to make a determination that Mr Kozlov was an earner in the absence of evidence to corroborate those payslips.
It was entirely reasonable for the insurer to ask Mr Kozlov to provide bank statements or a copy of an ATO Individual Income Statement as of 30 June 2023 and/or Individual Tax Returns for the financial year 2023 or other evidence to verify his alleged employment.
Was the claimant an earner
The question is whether the claimant was an earner for the purposes of Schedule 1 cl 2(a)(ii), that is, whether he been employed during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident.
Mr Kozlov submitted he had been employed for the period 1 April 2023 to 30 June 2023 in accordance with the payslips he furnished. As I indicated during the first teleconference on 7 August 2024 my preliminary view was that Mr Kozlov was an earner on the basis those payslips showed he was employed for a period of 13 weeks during the year immediately preceding the accident. However, that finding was predicated on my acceptance of the veracity of the records relied upon by Mr Kozlov.
The difficulty faced by Mr Kozlov is that the payslips contained discrepancies which alerted the insurer to the possibility they were not genuine. Further, the payslips were in the name of 187 Kent Street Pty Ltd (ABN 30 096 964 671), whilst that ABN relates to a corporate entity bearing the name 187 Kent Pty Ltd. The insurer asked Mr Kozlov to provide further evidence to verify his earnings.
On 6 November 2024 Mr Kozlov purported to upload bank statements relating to his NAB account [redacted]. The statement from 1 May 2023 to 13 April 2023 purported to show a deposit of $8,971 on 12 April 2023 which Mr Kozlov alleged was a salary payment for the period 1 April 2023 to 31 April 2023. When that statement is compared to the statement produced in response to the Direction for Production by NAB it is apparent the statement furnished by Mr Kozlov had been altered.
NAB statement furnished by Mr Kozlov:
[IMAGE UNABLE TO RENDER]
NAB statement furnished by NAB in response to Direction for Production:
[IMAGE UNABLE TO RENDER]
Whilst Mr Kozlov purported to provide ANZ lodgement receipts which he said demonstrated payments of $8,971 into his NAB Account [redacted] on 12 April 2023, 17 May 2023 and 14 June 2023 the ANZ Bank in response to the Direction for Production was unable to locate those documents.
Furthermore, in response to the Direction for Production NAB provided statements for NAB Account [redacted] for 5 May 2023 to 12 May 2023, 13 May 2023 to 14 July 2023 and 15 July 2023. Those statements do not show deposits of $8,971 on or about 17 May 2023 or on or about 14 June 2023.
The only available conclusion is that the ANZ lodgement receipts furnished by Mr Kozlov were not genuine documents issued by the ANZ Bank.
Where there is a discrepancy in the name of the alleged employer 187 Kent Street Pty Ltd with the nominated ABN 30-096-964-671 I am not satisfied that the PAYG payment summary for the year ended 30 June 2023 furnished by the claimant is a genuine document.
The doctored bank records provided by Mr Kozlov lead me to the prima facie conclusion that Mr Kozlov has been blatantly dishonest.
On the available evidence I am not satisfied that Mr Kozlov worked for 187 Kent Pty Ltd for the period 1 April 2023 to 30 June 2023 or that he was paid $8,971 on 12 April 2023, on 17 May 2023 or on 14 June 2023 by 187 Kent Pty Ltd.
I am not satisfied on the available evidence that Mr Kozlov was an earner for the purposes of Schedule 1 cl 2(a)(ii), that is, that he been employed during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident.
Furthermore, notwithstanding my preliminary view I am not satisfied on the available evidence that Mr Kozlov had not retired permanently from all employment. Whilst I consider permanent retirement from all employment to be unlikely where he is only 30 years of age his evidence is so unreliable and his credit so damaged that I am unable to give the evidence contained in his statement any credence.
Furthermore, in the absence of cogent evidence of earnings I am not satisfied Mr Kozlov has suffered a total or partial loss of earnings as a result of the injury caused by the accident.
Having found Mr Kozlov was not an earner I find he has no entitlement to weekly statutory payments.
CONCLUSION
I find Mr Kozlov was not an earner for the purposes of Schedule 1 cl 2(a)(ii) of the MAI Act.
I find Mr Kozlov has no entitlement to weekly payment of statutory benefits pursuant to ss 3.6 or 3.7 of the MAI Act.
DE-IDENTIFICATION OR REDACTION
In my capacity as a member of the Commission I direct the published decision be subject to redaction in respect of bank account identifiers pursuant to s 132 of the Personal Injury Commission Rules 2021 having regard to the safety, health and wellbeing of the claimant and the prevention of prejudice to the proper administration of justice.
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