Liu v Allianz
[2021] NSWPICMR 51
•15 December 2021
| 51CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Liu v Allianz [2021] NSWPICMR 51 |
| CLAIMANT: | Ying Liu |
| INSURER: | Allianz |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 15 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017; pre-accident weekly earnings (PAWE); cash income; whether there is sufficient evidence of cash in hand earnings; Held – the reviewable decision is set aside. |
| 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 (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 the Claimant’s pre-accident weekly earnings (PAWE) figure is $311.88. |
Background
There is a dispute between Ying Liu (the Claimant) 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 involved in a motor accident on 18 June 2021.
The Claimant made a claim for statutory benefits in connection with the motor accident.
On 10 August 2021 the insurer calculated the Claimant’s PAWE as $276.64.
The Claimant requested an internal review. On 17 September 2021 the insurer issued their internal review decision in which the PAWE figure was adjusted to $279.58.
The Claimant has applied for a merit review of the insurer’s 17 September 2021 decision.
Submissions
The Claimant submits the insurer failed to consider all of her pre-accident income in calculating PAWE. Specifically, the Claimant alleges her cash income as a housekeeper, which was not included in the insurer’s calculation, should be included in calculation of her PAWE.
The insurer submits there is insufficient evidence to verify the cash income the Claimant received from housekeeping and as a result, the Claimant’s housekeeping income cannot be calculated accurately. The insurer therefore does not consider it appropriate to take this income into account in calculating the Claimant’s PAWE.
Reasons
There is no dispute that the Claimant is an earner within the meaning in clause (2), Schedule 1 of the MAI Act.
There is also no dispute that the Claimant’s PAWE is to be calculated pursuant to clause 4(1) of Schedule 1 of the MAI Act on the basis there is no evidence that any of the exceptions in clause 4(2) apply.
Pursuant to clause 4(1) of Schedule 1 the Claimant’s PAWE is “the weekly average of the gross earnings received by [the Claimant] as an earner during the 12 months immediately before the day on which the motor accident occurred”. The relevant 12-month period is 18 June 2020 to 17 June 2021.
The issue in dispute is whether there is sufficient evidence of cash payments the Claimant received for housekeeping work in the relevant pre-accident period for these payments to be included in calculation of the Claimant’s PAWE.
The available evidence in relation to the Claimant’s housekeeping work is not absolute and less than ideal, as it does not include documents such as invoices, receipts or payslips which might otherwise evidence the hours worked and payments made to the Claimant.
The insurer is concerned with verification through some form of independent documentation in circumstances where documents do not exist.
Whilst the MAI Act contains verification requirements in relation to verification of the motor accident concerned (section 6.8) and verification of expenses for treatment and care (section 3.27) it does not contain an express requirement that an earner’s past earnings must be “verified” before they can be included in calculation of an earner’s PAWE.
However, the Claimant has a duty to co-operate with the insurer under section 6.24 of the MAI Act. This includes a duty to provide “sufficient information to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim, may be fraudulent” (section 6.24(1)(a)) and “to furnish specified information (in addition to the information furnished in the claim or to produce specified documents or records,” (section 6.24(2)(a)).
Of course, the Claimant can only provide such information or documents that are in existence and are in the Claimant’s possession, custody or control. If a document does not exist, or is not in the Claimant’s possession, custody or control then the Claimant will be unable to provide it to the insurer.
The Claimant states she did not receive any form of wage record and was paid cash in hand. She also did not deposit the cash payments into any bank account.
The Claimant has the onus of proving her entitlement to weekly benefits. This includes providing sufficient information on which to calculate her PAWE. However, the MAI Act does not require pre-accident earnings to be verified to perfection, or to a standard of beyond reasonable doubt.
In a civil matter such as this the standard of proof is on the balance of probabilities. That is, the Claimant must provide sufficient information upon which to be satisfied, on the balance of probabilities, as to the amount of her pre-accident earnings.
During the relevant pre-accident period the Claimant had two part-time/casual jobs, as follows:
(a) Working as a packer for BA Packing Pty Ltd.
(b) Working as a housekeeper for a person known as “Anan”.
The Claimant has provided payslips for her work as a packer demonstrating total earnings from this employment over the relevant pre-accident period in the sum of $14,538.01. The PAWE determination made by the insurer in their internal review decision is based on this sum alone. The insurer did not include any of the Claimant’s cash earnings as a housekeeper.
The evidence of cash earnings as a housekeeper comprises the following:
(a) A chronology prepared by the Claimant outlining the hours worked and pay received.
(b) Oral statements by the Claimant to the insurer that:
(i)she worked as a housekeeper “when the factory [packer] work slowed down between March and May 2021”;
(ii)she worked 3 to 5 hours per day, approximately 3 days per week;
(iii)she received payment in cash and did not deposit this cash into any bank account, and
(iv)she did not have any receipts or other records of payment.
(c) Contemporaneous text messages between the Claimant and Anan demonstrating the Claimant worked as a housekeeper for Anan for variable hours and days per week on a cash in hand basis.
(d) Oral statements by Anan to the insurer in which Anan broadly confirmed the housekeeping arrangement but was unable to provide details of specific hours or days worked.
(e) The Claimant’s 2021 tax return in which the Claimant declared “cash income” in the sum of $4,800 (this document was not made available to the insurer at the time of the internal review).
The insurer submits the Claimant’s chronology and tax return (which is based on the chronology) are not sufficient evidence of income as a housekeeper in the absence of any documents in support of the contentions made by the Claimant in her chronology and tax return. However, this overlooks the fact there is some independent evidence to support the Claimant’s contention that she worked as a housekeeper from time to time, receiving cash in hand. That evidence is in the form of the insurer’s interview with Anan who confirmed the general arrangement and the contemporaneous text messages exchanged between Anan and the Claimant.
I agree the Claimant’s chronology should be treated with some caution given:
(a) It was likely prepared recently for the purpose of this claim in circumstances where the Claimant had no records whatsoever which might assist her to recall the dates and times worked, other than the text messages.
(b) The chronology is, in parts, inconsistent with the contemporaneous text messages (the inconsistencies are identified in the table below).
Similarly, the tax return has only been prepared recently, based on the Claimant’s chronology. There are no source documents to support the cash income said to be declared in the tax return. There is no evidence such as a notice of assessment to confirm the tax return has in fact been lodged with the Australian Taxation Office with content identical to that in the version submitted for this merit review.
In addition to the above matters I have considered the following:
(a) That the Claimant’s contention she was paid $30 per hour as a housekeeper is within market rate range for this work.
(b) That the general impression from the text messages is that the housekeeping work for Anan was on an ad hoc basis. Whilst there is reference to it potentially being three days per week in some of the messages it seems clear that this was not a regular arrangement but rather, the arrangement was constantly adjusted. The text messages suggest the general practice was for the Claimant to check with Anan the day before as to whether she was required the following day. Sometimes Anan would say yes. Sometimes she would say no or reschedule.
(c) However, it remains the position that there is some contemporaneous evidence that supports the Claimant’s contention she received income from time to time from housekeeping work in the relevant pre-accident period. Whilst the text messages do not refer to payments, they clearly suggest a commercial arrangement from which it can be inferred that the Claimant attended Anan’s home to cook and clean in return for payment of a fee by Anan. It is understood that Anan also generally confirmed with the insurer that she paid for the Claimant’s services.
(d) Given the Claimant’s recollection in her chronology is inconsistent in parts with the text messages and the fact the text messages are a contemporaneous record, the text messages are to be preferred.
On balance, I conclude the contemporaneous text messages likely represent the hours worked by the Claimant as a housekeeper in the relevant pre-accident period. A comparison of the text messages against the Claimant’s chronology demonstrates the following:
Claimant’s recollection in her chronology Supported by text messages? Date worked Hours worked 2/3/21 3 Yes 4/3/21 5 No 6/3/21 4 Yes 9/3/21 4 No 11/3/21 4 No – a text message on 10/3/21 is to the effect the employer cancelled the attendance on 11/3/21. Messages indicate the Claimant attended on Sunday 14 March instead 14/3/21 4 Yes – 10/3/21 messages indicate attendance on 11/3/21 was rearranged to this date 16/3/21 4 Yes 18/3/21 3 No 20/3/21 4 No 23/3/21 4 Yes – but only “3 hours of cleaning”; no cooking 25/3/21 5 Yes 27/3/21 4 No 30/3/21 4 Yes 1/4/21 4 No 3/4/21 4 No 6/4/21 4 Yes 8/4/21 3 No – message of 7/4/21 appears to cancel the attendance on 8/4/21 and ask the Claimant to come on Saturday 10/4/21 instead 10/4/21 4 Yes 13/4/21 5 Yes 15/4/21 4 No - message of 14/4/21 asks the Claimant to attend on Friday 16/4/21 instead of Thursday 15/4/21 18/4/21 4 No 20/4/21 4 Yes 22/4/21 4 Yes 24/4/21 4 No 27/4/21 4 No – messages on 25 and 26 April appear to cancel this attendance 29/4/21 4 No 1/5/21 4 No 4/5/21 4 No 6/5/21 5 No 9/5/21 4 No 11/5/21 4 No 13/5/21 3 No 15/5/21 4 No 18/5/21 5 No 10/5/21 4 No 21/5/21 4 No 24/5/21 3 No 26/5/21 4 No 28/5/21 4 No 30/5/21 4 Yes
Based on the above I am satisfied on the balance of probabilities that the Claimant received cash income as a housekeeper on the dates verified by text messages as follows:
Date worked Hours worked 2/3/21 3 6/3/21 4 14/3/21 4 16/3/21 4 23/3/21 3 (adjusted from 4 hours to 3 hours per text message) 25/3/21 5 30/3/21 4 6/4/21 4 10/4/21 4 13/4/21 5 16/4/21 (adjusted from 15/4/21 to 16/4/21 per text message) 4 20/4/21 4 22/4/21 4 30/5/21 4 Total hours 56
The insurer relies on the merit review decision of AFC v NRMA [2019] NSWDRS MR 129 (AFC v NRMA) in relation to whether there is sufficient evidence of the Claimant’s pre-accident earnings. I am not bound by that decision but in any event, I consider it distinguishable from this matter. An assessment of whether there is sufficient evidence to establish, on the balance of probabilities, an injured person’s pre-accident earnings will turn on the facts specific to each case. In AFC V NRMA the merit reviewer outlines a number of difficulties with the bank records, which are specific to the facts of that case. Whilst the merit reviewer had difficulty accepting the bank records in the specific circumstances of that matter the decision does not stand as a general principle that bank records alone are not sufficient evidence of earnings. Whether bank records will be sufficient must be determined on a case-by-case basis, taking into account the particular circumstances of each individual case.
For the reasons set out above I am satisfied on the balance of probabilities that the Claimant worked 56 hours as a housekeeper during the relevant pre-accident period at $30 per hour, which generated income of $1,680. This amount is therefore to be included in calculation of the Claimant’s PAWE.
On the basis of the above the Claimant’s gross earnings during the 12 months prior to the accident were $16,218.01 ($14,538.01 as a packer plus $1,680 as a housekeeper). The Claimant’s PAWE is therefore $311.88 ($16,218.01 divided by 52 weeks).
Conclusion
The reviewable decision is:
(a) set aside and the Claimant’s PAWE figure is $311.88.
Legislation and Guidelines
In making this decision, I have considered the following:
· The Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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