Nouri v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMR 19
•21 March 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Nouri v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 19 |
| CLAIMANT: | Hadi Nouri |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 21 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); pre-accident weekly earnings; clause 4(1) of the MAI Act; 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 (b) the claimant’s pre-accident weekly earnings (PAWE) figure is $150.58 (to be indexed by the insurer, as may be required). |
BACKGROUND
The claimant has made an application for medical assessment as to whether his injury is a minor injury and for a merit review in relation to the amount of his pre-accident weekly earnings (PAWE). This decision is in respect of the merit review application regarding PAWE.
There is a dispute between Hadi Nouri (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the MAI Act.
The claimant was involved in a motor accident on 27 July 2020.
The claimant made a claim for statutory benefits under Part 3 of the MAI Act, including weekly payment under Division 3.3.
On 7 December 2020 the insurer calculated the claimant’s PAWE in the sum of $207.35 based on evidence of earnings received by the claimant in the period 19 August 2019 to 17 July 2020.
On 16 December 2020 the insurer revised the claimant’s PAWE to $807.28 based on earnings received in the period 18 January 2020 to 16 July 2020 said to total $27,447.60.
The claimant requested an internal review of the revised PAWE decision.
On 22 December 2020 the insurer issued their internal review which affirmed the revised decision of 16 December 2020 that PAWE is $807.28.
PROCEDURAL DIRECTIONS
On 13 February 2022 I issued procedural directions to the parties which required the claimant to provide the following by 21 February 2022:
(a) a further/replacement copy of all payslips/wage records provided to the insurer for the purpose of determining PAWE in chronological order in place of the individual wage documents currently in the portal;
(b) tax returns and notices of assessment for the financial years 2018/2019, 2019/2020 and 2020/2021;
(c) any further documents relied upon by the claimant for the purpose of determining PAWE, and
(d) written submissions setting out the basis upon which the insurer’s PAWE determination is challenged and the contentions the claimant makes as to how PAWE should be assessed and/or calculated.
The claimant is legally represented by Prominent Lawyers. Despite legal representation the claimant failed to comply with the 13 February 2022 directions. The claimant did not provide the PDF document bundle of payslips, as directed. The claimant did not provide his tax returns and notices of assessment for 2019, 2020 and 2021, as directed. The claimant did not provide any further documents or submissions setting out the basis upon which he says his PAWE should be calculated.
No extension of time was sought by the claimant. No explanation has been provided by the claimant for his failure to comply with the directions of 13 February 2022.
SUBMISSIONS
The claimant has not provided any submissions setting out his contentions in relation to calculation of his PAWE, despite being directed to do so. The application for a merit review, however, suggests the claimant’s complaint about PAWE is that he says the insurer has calculated PAWE based on net earnings, rather than gross. However, the figures I have taken in my reasons below are clearly stated as gross earnings in the payslips issued by the relevant employer, Prestigious Transport. Tax was not withheld by Prestigious Transport.
The insurer has not provided any detailed submission in relation to PAWE, and the internal review decision does not make clear the basis upon which the insurer calculated total earnings in the period 18 January 2020 to 16 July 2020 as $27,447.60 in order to reach a PAWE figure of $807.28.
REASONS
There is no dispute that the claimant is an earner pursuant to schedule 1, clause 2 of the MAI Act.
The dispute is over the amount of the claimant’s PAWE under clause 4 of schedule 1.
Legislation
Pursuant to clause 4 of schedule 1 of the MAI Act PAWE means:
"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.”
There is no evidence to suggest any of the exceptions in clause 4(2) apply to the claimant’s circumstances. There is also no evidence that might trigger clause 4(3). Accordingly, the claimant’s PAWE falls for assessment under clause 4(1). Clause 4(1) requires the claimant’s PAWE to be calculated on the basis of the weekly average of the gross earnings received by him as an earner during the 12 months immediately before the day on which the motor accident occurred. The motor accident occurred on 27 July 2020. Accordingly, the pre-accident period for the purpose of clause 4(1) is 27 July 2019 to 26 July 2020.
Consideration
The claimant declared in his application for personal injury benefits that at the time of the motor accident he was a bus driver for Prestigious Transport earning $195 gross per week.
The claimant has provided payslips issued by Prestigious Transport which show gross earnings of $390 per fortnight which is consistent with the claimant’s declaration that he was earning $195 gross per week.
The claimant has also provided wage records in respect of income received from Nourico Pty Limited in August and September 2020. However, these payments were received after the end of the pre-accident period under clause 4(1) and are therefore excluded from calculation of PAWE. Clause 4(1) is restricted to payments received in the 12 month period before the date of the motor accident. Of note, however, these additional pay records evidence significant ongoing income received by the claimant post-accident. If the insurer has not already done so, they should investigate the extent of ongoing post-accident earnings for the purpose of calculating the amount of weekly benefits payable under Division 3.3.
Returning to the issue of pre-accident earnings, the payslips provided by the claimant demonstrate the following earnings were received by the claimant in the pre-accident period from 27 July 2019 to 26 July 2020:
Date received
Amount
30 August 2019
$600
13 September 2019
$600
27 September 2019
$390
11 October 2019
$390
25 October 2019
$390
8 November 2019
$390
22 November 2019
$390
6 December 2019
$390
20 December 2019
$390
14 February 2020
$390
28 February 2020
$390
13 March 2020
$390
27 March 2020
$390
23 April 2020
$390
8 May 2020
$390
25 May 2020
$390
19 June 2020
$390
3 July 2020
$390
17 July 2020
$390
TOTAL
$7,830
Duplicate payslips have been provided for 11 October 2019. The duplicate is therefore not included in the above.
There is an additional payslip from Prestigious Transport for wages paid 31 July 2020 in the sum of $390. As this falls outside the pre-accident period which ends 26 July 2020, it is excluded from calculation of PAWE and therefore also not included in the above table.
Accordingly, gross earnings received by the claimant in the pre-accident period from 27 July 2019 to 26 July 2020 were $7,830.
It appears the claimant was employed on a casual basis and accordingly, did not receive payment of annual or sick leave for any period(s) he did not work. The sequence of payslips indicates the claimant took approximately six weeks unpaid leave from on or about 20 December 2019 to on or about 31 January 2020, and around two weeks unpaid leave in the months of April 2020 and June 2020.
The evidence establishes total earnings in the pre-accident period of $7,830, which produces PAWE of $150.58 ($7,830 divided by 52 weeks).
The insurer’s revised calculation of PAWE in the sum of $807.28 is said to be based on payslips for the period from 18 January 2020 to 16 July 2020 totalling $27,447.60. However, the payslips in this period only total $3,900. The insurer has perhaps inadvertently included earnings from Nourico Pty Ltd received in August 2020 and September 2020 when calculating the revised PAWE, but this is not clear from the reasons for the insurer’s decision.
Given the claimant’s contemporaneous declaration in his application for personal injury benefits that at the time of the motor accident his earnings were limited to $195 gross per week as a bus driver, it would be surprising if there was other income in the pre-accident period in addition to the earnings received from Prestigious Transport.
The name of the subsequent employer, “Nourico” suggests the claimant, Hadi “Nouri”, may have some relationship with Nourico Pty Ltd other than simply employee such as company director. If the claimant received wages from Nourico Pty Ltd pre-accident one would expect this to be declared by the claimant in his application for personal injury benefits. However, there is no suggestion that the claimant received any earnings pre-accident other than as a bus driver for Prestigious Transport.
Accordingly, to the extent the claimant requested the inclusion of any alleged pre-accident earnings from Nourico Pty Ltd in calculation of PAWE this should be verified by the insurer by independent means such as the claimant’s tax return and notice of assessment for the financial year ending 30 June 2020. If wages were in fact received from Nourico Pty Ltd prior to the date of the motor accident, they ought to appear in this tax return even if the claimant operates the company, Nourico Pty Ltd. The notice of assessment should verify the tax return provided is the as lodged with the ATO tax return and not a draft.
I note the claimant failed to comply with my direction to provide his tax returns and notices of assessment and there is no evidence before me to suggest the claimant received earnings from any source, other than Prestigious Transport, during the pre-accident period.
I am therefore satisfied on balance that the claimant’s PAWE is $150.58 based on the following:
(a) the figure is consistent with the claimant’s declaration that he was earning $195 per week (the slightly lower PAWE figure is accounted for by the fact the claimant was employed on a casual basis and therefore did not receive any earnings when on leave during the periods noted above);
(b) the figure is based on total gross earnings in the pre-accident period of $7,830, as evidenced by the Prestigious Transport payslips, and
(c) there is no evidence before me of any other earnings received by the claimant in the pre-accident period.
CONCLUSION
For the reasons set out above, the claimant’s PAWE is $150.58 being total gross earnings of $7,830 received in the pre-accident period from 27 July 2019 to 26 July 2020 divided by 52 weeks.
Accordingly, the reviewable decision is:
(a) set aside, and
(b) the claimant’s PAWE is $150.58 (to be indexed by the insurer, as may be required).
As noted above, the documents indicate the claimant received earnings post-accident in an amount that would likely result in no benefits being payable under Division 3.3, at least in the period 3 August 2020 to 14 September 2020. The payslips from Nourico Pty Ltd evidence the claimant had full capacity to work during this period.
Weekly benefits are calculated based on the difference between PAWE and post-accident earning capacity under sections 3.6 and 3.7 of the MAI Act. Payments under section 3.8 must also be adjusted to account for any post-accident earnings. Accordingly, the insurer should request that the claimant provide further documents regarding any ongoing post-accident income, including his 2021 tax return and notice of assessment. If the claimant has a relationship with Nourico Pty Ltd other than employee (noting the commonality in the company name and the claimant’s surname), documents of the company and bank statements of the claimant may also need to be provided to the insurer for the purpose of verifying the extent to which the claimant has received post-accident earnings.
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.
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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