Magtoto v QBE

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Magtoto v QBE [2021] NSWPICMR 43
CLAIMANT:	Jonalee Magtoto
INSURER:	QBE
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	15 September 2021
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; dispute about the amount of weekly payments under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident weekly earnings (PAWE); absence of pay records; insufficient evidence; application of Schedule 1, clause 4(1) of the MAI Act; PAWE incorrectly calculated; 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 a merit review matter under Schedule 2(1)(a) of the MAI Act. My determination of this Merit Review is as follows: 1. The reviewable decision is set aside. The Claimant’s pre-accident weekly earnings (PAWE) are $471.66**

Background

There is a dispute between Jonalee Magtoto (the Claimant) and the insurer in relation to weekly payments of statutory benefits under Division 3.3 of the MAI Act.
The Claimant was involved in a motor accident on 13 February 2020. She lodged a claim for weekly payments of statutory benefits.
Initially the Claimant was paid an interim payment under section 3.6 of the MAI Act on the basis she had not provided sufficient information to enable the insurer to calculate her pre-accident weekly earnings (PAWE).
When interim payments were due to cease the insurer calculated the Claimant’s PAWE to be $450.
The Claimant requested an internal review of this decision. The insurer conducted an internal review and in doing so, considered further information provided by the Claimant. As a result, the insurer’s internal review decision calculated the Claimant’s PAWE to be $209.82.
The Claimant has requested a merit review of the insurer’s internal review decision dated 17 June 2020.

Submissions

In her application for a merit review the Claimant says she earned $900 per week pre-accident from September 2019 to December 2019 before commencing maternity leave on 14 December 2019. The Claimant says the motor accident occurred shortly before she was due to return to work in February 2020.
The insurer submits the Claimant has now provided further information and in light of this further information it incorrectly calculated the Claimant’s PAWE in the internal review decision. The insurer submits, based on the further information, the Claimant’s PAWE is $471.66, being the weekly average over the 12 months (52 weeks) prior to the accident.

Reasons

The Claimant was employed by Havana Lounge earning $375 per week and subsequently by Moon Horse Group Pty Limited (Moon Horse) earning around $250 per week. She earned consistently from employment prior to and in the 12 month period prior to the accident up until 19 January 2020.
There is no dispute that the Claimant is an earner within the meaning of Schedule 1, clause 2(a) of the MAI Act based on the above.
The question to be determined is what is the claimant’s PAWE for the purpose of determining the Claimant’s entitlement to weekly benefits under Division 3.3 of the MAI Act?
Under to Schedule 1, clause 4 of the MAI Act “pre-accident weekly earnings” means:
4 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 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’s circumstances fall within Schedule 1, clause 4(1), as none of the circumstances in clause 4(2) apply.
Under clause 4(1) the Claimant’s PAWE is the weekly average of gross earnings received by the Claimant during the 12 months immediately before the day on which the motor accident occurred. The motor accident occurred on 13 February 2020. Accordingly, the 12 month period under clause 4(1) is 13 February 2019 to 12 February 2020.
The Claimant has provided pay records from her employers, Moon Horse and Havana Lounge.
The evidence of earnings from Havana Lounge comprises various payslips which include a running total of the year to date gross earnings.
The first payslip records a gross payment of $375 on 11 February 2019, which is also recorded as the year to date earnings. As this payment was made before the relevant pre-accident period commencing 13 February 2019 it is to be excluded from calculation of the Claimant’s PAWE.
The balance of the Havana Lounge payslips show:
(a)    Total year to date earnings from 11 February 2019 to 2 June 2019 in the sum of $10,500. Having regard to the fact the first $375 payment in this total was on 11 February 2019 and is therefore excluded, gross earnings from 13 February 2019 to 30 June 2019 are $10,125.
(b)    Payslips are missing for the period 3 June 2019 to 30 June 2019. However, the Insurer is prepared to accept that during this period the Claimant received weekly income from Havana Lounge consistent with previous payments that is, $375 per week. Accordingly, it is assumed (and agreed by the Insurer despite the absence of records) that the Claimant earned $1,500 in this 4 week period.
(c)    Payslips from 1 July 2019 to 29 September 2019, record gross year to date earnings in this period of $4,875, consistent with the Claimant continuing to earn $375 per week.
(d)    Payslips from 13 October 2019 to 9 November 2019 show year to date earnings in this period in the sum of $5,526.32.
Moon Horse earnings are recorded in an ATO income statement for the period 14 October 2019 to 19 January 2020 in the gross sum of $2,500.
Based on the documents and the concessions of the Insurer in relation to the period of missing payslips the Claimant’s gross earnings in the relevant 12 month period from 13 February 2019 to 12 February 2020 are $24,526.32
This equates to an average over the pre-accident period of $471.66 per week. The Claimant’s PAWE is therefore $471.66.
There is no evidence the claimant was earning $900 per week in the months of September to December 2019, as contended. In any event, her PAWE is the weekly average over the whole of the 12 month pre-accident period and as such, includes the preceding months of February to August 2019 and the following months of January and February 2020 in addition to the months of September to December 2019.
In relation to earnings from Moon Horse, there is no breakdown as to when payments were made in the stated period or as to the amount of individual (for example, weekly, fortnightly or monthly) payments. It is not known whether payment amounts were consistent from Moon Horse or whether in some weeks the Claimant earned more and other weeks she earned less or nothing at all. On the face of the Moon Horse statement of earnings there appears to be a short period of overlap in employment where the Claimant received income from both Havana Lounge and Moon Horse. However, taking the weekly average of $250 in the Moon Horse statement of earnings, this falls short of, and does not account for the $900 per week contended by the Claimant.

Conclusion

The evidence and the insurer’s concession in favour of the Claimant substantiate gross earnings of $24,526.32 in the relevant period under clause 4(1) from 13 February 2019 to 12 February 2020. This produces PAWE of $471.66 when averaged over the 52 week period.

25. Accordingly, my determination of this Merit Review is as follows:

(a) The reviewable decision is set aside.
(b) The Claimant’s pre-accident weekly earnings (PAWE) are $471.66.

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

Katherine Ruschen

Merit Reviewer

Personal Injury Commission

[2021] NSWPICMR 43

15 September 2021