Nyembo v Allianz Australia Insurance Limited
[2023] NSWPICMR 31
•12 May 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Nyembo v Allianz Australia Insurance Limited [2023] NSWPICMR 31 |
| ClaimanT: | Patrice Nyembo |
| Insurer: | Allianz Australia Insurance Limited |
| Merit Reviewer: | Maurice Castagnet |
| DATE OF DECISION: | 12 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about the amount of weekly payments of statutory benefits payable under Division 3.3; where the claimant was an earner but not employed immediately before the accident; JobSeeker payments from Centrelink; Schedule 1 clause 4(1) to be applied to calculate claimant’s pre-accident weekly earnings (PAWE); Held – the reviewable decision is set aside; matter remitted to insurer for re-determination. |
Determinations made: | CERTIFICATE OF DETERMINATION The reviewable decision concerns the amount of weekly payments of statutory benefits that is 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, cl (1)(a) of the MAI Act. 1. The reviewable decision is set aside. 2. The matter is remitted to the insurer for re-determination in accordance with the following directions: (a) On or before 2 June 2023, the claimant is to provide the insurer with the following documents: (i) clear and legible copies of his income statements/payment summaries, individual tax return and notice of assessment for the financial year ended 30 June 2022; (ii) clear and legible copies of all payslips previously provided to the insurer; (iii) clear and legible copies of any payslips issued to the claimant for wages from any form of employment during the period between 1 July 2022 and 25 November 2022, and (iv) any other information or documents upon which the claimant seeks to rely as evidence of his earnings during the period between 26 November 2021 and 25 November 2022. (b) following receipt of further information and documents from the claimant pursuant to the above directions and no later than 16 June 2023, the insurer is to re-determine the claimant’s pre-accident weekly earnings (PAWE) in accordance with Schedule 1, cl 4(1) of the MAI Act by calculating the sum of the claimant’s gross earnings as an earner during the period between 26 November 2021 and 25 November 2022 and dividing that sum by 52 weeks. |
STATEMENT OF REASONS
INTRODUCTION
In this matter there is a dispute between the claimant, Patrice Nyembo, and the insurer concerning the amount of weekly payments of statutory benefits that is payable to the claimant under Division 3 of the Motor Accident Injuries Act 2017 (the MAI Act).
BACKGROUND
The claimant is a 61-year-old man who was injured in a motor accident on 26 November 2022.
On 1 December 2022, the claimant made a claim to the insurer for statutory benefits. The claim included an application for weekly payments for loss of earnings.
On his claim form, the claimant stated that he was unemployed at the time of the accident, and that he was receiving JobSeeker payments from Centrelink. He stated that his usual occupation was that of counsellor.
On 30 December 2022, the insurer notified the claimant of its decision in the following terms:
“Whilst we accept you meet the definition of an ‘earner,’ payments of weekly benefits are only payable if you have incurred a loss of earnings as a result of your injury. You do not meet the criteria of loss of earnings as you finished temp (sic) contract as Counsellor with Westmead Hospital [sic] 30/6/22 and had not worked since then prior to the MVA.”
The claimant sought an internal review of the insurer’s decision. On 27 January 2023, the insurer then issued a review decision, affirming its original decision.
On 20 February 2023, the claimant made an application to the Personal Injury Commission (Commission) seeking a merit review of the insurer’s review decision.
The application is now before me for determination.
DOCUMENTS PROVIDED TO THE COMMISSION
The claimant has provided copies of the following documents with his application:
(a) letter from the insurer dated 7 December 2022, acknowledging receipt of the claimant’s claim for statutory benefits;
(b) the insurer’s Liability Notice-benefits up to 26 weeks, dated 30 December 2022;
(c) the insurer’s internal review decision dated 27 January 2023, and
(d) a Tax File Declaration(blank).
In section 8 of the claimant’s application, headed “Supporting documents,” the claimant stated the following – “All documents to be supplied by insurance [sic].”
The insurer has provided copies of the following documents with its reply:
(a) R1 – insurer’s submissions;
(b) R2 – Application for Personal Injury Benefits;
(c) R3 – Certificate of fitness (various), and
(d) R4 – payslips (4)
Having considered the documents provided by the parties, I formed the view that there was sufficient information for me to determine the merits of the insurer’s review decision but I did not have sufficient information to calculate the pre-accident weekly earnings (PAWE). As I will explain later in these reasons, the claimant’s PAWE are used to determine the actual amount of weekly payments of statutory benefits that may be payable to the claimant, subject to the usual reductions imposed by Division 3.3 of the MAI Act.
Furthermore, the four pay slips provided by the insurer as R4 were, for the most part, illegible. The only information that I could establish from these documents was that the payslips related to earnings received by the claimant in around June 2022.
In these circumstances, on 13 April 2023, I issued directions to the parties to provide further information and documents to the Commission.
First, I directed the insurer to provide the Commission with legible copies of the documents submitted as R4. On 14 April 2023, the insurer provided the Commission with a reply in the following terms:
“The insurer advises that the payslips that have been provided at R4 are the only copies that the Claimant has provided. We are not in possession of legible documents. I also confirm that the Claimant has provided for the period 26 November 2021 and 25 November 2021 [sic] were included in the reply.”
Secondly, on 13 April 2023, I issued a direction to the claimant to provide the Commission with copies of his income statements issued by the Australian Taxation Office for the financial year ended 30 June 2022 and copies of any payslips issued to the claimant for earnings from employment during the period between 1 July 2022 and 25 November 2022.
The claimant was requested to comply with the direction by 21 April 2023. There was no response from the claimant. By emails of 1 May 2023 and 2 May 2023, the claimant was reminded by the Registry to comply with the direction as soon as possible or by 5 May 2023. No response was received from the claimant.
Based on the information before me, I am satisfied that I can proceed to determine the merits for the insurer’s review decision on the papers. However, I do not have enough information to calculate the claimant’s PAWE. As will become apparent later in these reasons, the matter will be remitted to the insurer to make that calculation when further information is obtained from the claimant.
LEGISLATION
In making my decision, I considered the following:
· the MAI Act;
· the Motor Accident Guidelines 2017 (Version 9.1) (the Guidelines), and
· the Motor Accident Injuries Regulation 2017 (the Regulation).
SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) The insurer accepts that the claimant is an “earner” within the definition of Schedule 1 cl 2 of the MAI Act. On that basis, the claimant is entitled to weekly payments of statutory benefits if he has incurred a loss of earnings as a result of his injury.
(b) In his claim form, the claimant stated that he was unemployed at the time of the accident and that he was in receipt of JobKeeper payments from Centrelink.
(c) Centrelink payments are not income from personal exertion. See AAW v GIO Ltd [2021] NSWPICMR 10 (15 May 2021) and Bonda v NRMA [2022] NSWPICMR 39 (7 June 2022).
(d) As the claimant was in receipt of Centrelink payments at the time of the accident, the insurer says that the claimant did not sustain a loss of earnings as a result of this injury.
The claimant did not make any submissions.
RELEVANT LEGISLATION
Division 3.3 of the MAI Act deals with weekly payments of statutory benefits to injured persons. Sections 3.6 and 3.7 deal with the entitlement to weekly payments of an “earner” such as the claimant, during the period from the date of the accident up to 78 weeks following the accident. The first period is the first 13 weeks after the accident. The second period is from weeks 14 to 78. These sections relevantly provide:
“3.6 Weekly payments during first entitlement period (first 13 weeks after motor accident)
(1) 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 is entitled to weekly payments of statutory benefits under this section during the first entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of 95% of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) for the first entitlement period.
…
3.7 Weekly payments during second entitlement period (weeks 14–78 after motor accident)(1) 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 is entitled to weekly payments of statutory benefits under this section during the second entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of —
(a) in the case of total loss of earning capacity—80%, or
(b) in the case of partial loss of earning capacity—85%,
of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) after the first entitlement period.
…”
(Emphasis added.)Pre-accident weekly earnings is defined in cl 4(1) of Schedule 1 of the MAI Act, subject to the qualifications in sub-cls (2), (2A), (3) and (4).
Clause 4 of Schedule 1 provides:
“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.
…
(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.”
Although the insurer has accepted that the claimant is an “earner” for the purpose of receiving weekly payments under ss 3.6 and 3.7 of the MAI Act, it is appropriate, for reasons that will later become apparent, to set out its definition in the MAI Act, in full.
Clause 2 of Schedule 1 provides:
“2 Meaning of ‘earner’
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 of periods equal to at least 13 weeks during the year immediately preceding the motor accident, or
(ii) during a period or periods equal to at least 26 weeks during the 2 years preceding the motor accident,
and, at the date of the accident, had not retired permanently from all employment, or
(b) before the motor accident, had entered into an arrangement (whether or not an enforceable contract);
(i) with an employer or other person to undertake employment, or
(ii) to commence business as a self-employed person, at a particular time and place, or
(c) was receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.”
“Loss of earnings” is defined in cl 3 of Schedule 1 of the MAI Act in the following terms:
“3 Meaning of ‘loss of earnings’.
(1) Loss of earnings means a loss incurred or likely to be incurred in a person’s income from personal exertion.
(2) A person’s income from personal exertion is—
(a) the amount that is the income of the person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, and
(b) the proceeds of any business carried on by the person either alone or in partnership with any other person, and
(c) any amount received as bounty or subsidy in carrying on a business.
(3) A person's
‘income from personal exertion’ does not include--(a) interest, unless the person's principal business consists of the lending of money, or unless the interest is received in respect of a debt due to the person for goods supplied or services rendered by the person in the course of the person's business, or
(b) rents or dividends, or
(c) any employer superannuation contributions, or
(d) the monetary amount of any annual, sick or other leave entitlement.”
DISCUSSION
The insurer accepts that the claimant is an “earner” for the purpose of any entitlements to weekly payments for loss of earnings under ss 3.6 and 3.7 of the MAI Act.
However, the insurer argues that since the claimant was unemployed at the time of the motor accident and was in receipt of JobSeeker payments from Centrelink, the claimant is not entitled to receive weekly payments for loss of earnings under ss 3.6 and 3.7.
I do not accept that argument for the following reasons.
As conceded by the insurer, the claimant has satisfied the requirements of cl 2 of Schedule 1 to attain the status of an “earner”. Once the claimant has achieved that status, he is eligible to receive weekly payments of statutory benefits under ss 3.6 and 3.7 of the MAI Act for loss of earnings.
Sub-clause 3 (1) of Schedule 1 of the MAI Act defines “loss of earnings” as a loss incurred or likely to be incurred in a person’s income from personal exertion. Sub-clause 3(2) provides that the person’s income from personal exertion includes earnings, salaries and wages received in the capacity of employee.
I accept from the evidence before me that following the conclusion of his employment contract as a Counsellor with Westmead Hospital on 30 June 2022, the claimant had not retired from permanent employment. Indeed, he then received Jobseeker payments while searching for alternative employment. Subsequent to the accident, he was unable to engage in employment because of his injuries. The claimant’s injuries have therefore caused him to suffer a loss of earnings.
According to ss 3.6 and 3.7 of the MAI Act, the amount of weekly payments that the claimant might be eligible to receive as an “earner” in respect to loss of earnings during the first two entitlement periods is determined by calculating the difference between the injured person’s PAWE and their post-accident earning capacity.
The injured person’s PAWE is determined by cl 4 of Schedule 1 of the MAI Act.
Clause 4 of Schedule 1 of the MAI Act provides that sub-cl 4(1) is to be applied to determine PAWE unless any of the circumstances in sub-cl 4(2) exist.
According to sub-cl 4(1), an earner’s PAWE 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.
In this case, the period of 12 months immediately before the day of the accident is from 26 November 2021 to 25 November 2022 (the relevant period).
The evidence reveals that during the relevant period, the claimant received gross earnings from his employment as counsellor with Westmead Hospital until June 2022. At the time of the accident, he was unemployed and in receipt of JobSeeker payments from Centrelink. The claimant has earned nothing since the accident.
I accept that JobSeeker payments received by the claimant from Centrelink are not gross earnings received as an earner during the relevant period for the purpose of calculating the claimant’s PAWE under sub-cl 4(1). However, there is nothing in the provision of sub-cl 4(1) that suggests that the earner must be in employment or self-employment during the whole of the relevant period or on the day immediately before the motor accident. Accordingly, the provision of sub-cl 4(1) applies to the claimant’s circumstances. What is required in calculating PAWE is that the gross earnings of the claimant as an earner during the relevant period are averaged out over the relevant period.
In the circumstances of this case, I find that the claimant has received gross earnings as an earner during the relevant period at least from his employment as a counsellor with Westmead Hospital until 30 June 2022. These earnings must therefore be taken into account to calculate the claimant’s PAWE under Schedule 1, sub-cl 4(1) for the purposes of determining the amount of weekly payments of statutory benefits that is payable to the claimant under ss 3.6 and 3.7 of Division 3.3 of the MAI Act.
In conformity with s 7.13(1) of the MAI Act, my role is to decide the correct and preferable decision, having regard to the material before me and any applicable written or unwritten law. I have made my finding based on the material before me and having considered the facts and circumstances of the matter.
CONCLUSION
The reviewable decision is set aside.
The matter is remitted to the insurer for re-determination in accordance with the following directions:
(a) On or before 2 June 2023, the claimant is to provide the insurer with the following documents:
(i)clear and legible copies of his income statements/payment summaries, individual tax return and notice of assessment for the financial year ended 30 June 2022;
(ii)clear and legible copies of all payslips previously provided to the insurer;
(iii)clear and legible copies of any payslips issued to the claimant for wages from any form of employment during the period between 1 July 2022 and 25 November 2022, and
(iv)any other information or documents upon which the claimant seeks to rely as evidence of his earnings during the period between 26 November 2021 and 25 November 2022.
(b) following receipt of further information and documents from the claimant pursuant to the above directions and no later than 16 June 2023, the insurer is to re-determine the claimant’s PAWE in accordance with Schedule 1, cl 4(1) of the MAI Act by calculating the sum of the claimant’s gross earnings as an earner during the period between 26 November 2021 and 25 November 2022 and dividing that sum by 52 weeks.
The effective date of this decision is 27 November 2022.
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