Patel v AAI Limited t/as AAMI - [2023] NSWPICMR 46

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Patel v AAI Limited t/as AAMI [2023] NSWPICMR 46
CLAIMANT:	Jyoti Chirag Patel
INSURER:	AAMI
MERIT REVIEWER:	Ray Plibersek
DATE OF DECISION:	8 September 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; pre accident weekly earnings (PAWE); dispute over calculation of the claimant’s PAWE; whether a pay rise can be included when calculating earnings; two decisions of the Fair Work Commission on 4 November 2022 and 21 February 2023 awarded the claimant a 15% pay rise; the pay rise commenced ten days after the date of the claimants motor vehicle accident; claimant’s action was sufficient to satisfy the definition in sub-clause 4(3) and resulted in the claimant being entitled to earn more on a weekly basis; Towers v GIO referred to; Held – remitted to the insurer for reconsideration and recalculation of the claimant’s PAWE to include the 15 % pay rise; claimant’s PAWE to be calculated in accordance with sub-clauses 4(2)(b) and 4(3) of Schedule 1.
DETERMINATIONS MADE:	Certificate of Determination Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 The certificate of this review determination is as follows: 1. The reviewable decision is set side. 2. For the period from 20 June 2023 until 30 June 2023 the claimant’s pre-accident weekly earnings (PAWE) is determined under Division 3.3 and sub-clauses 4 (2) and 4(3) of Schedule 1 of the Motor Accident Injuries Act 2017 (the MAI Act) to be $922.86 per week. 3. For the period from 1 July 2023 and ongoing the claimant’s PAWE is to be determined under Division 3.3 and sub-clauses 4 (2) and 4(3) of Schedule 1 of the MAI Act and calculated based upon the new higher rate pay specified in the claimant’s payslips. The matter is remitted to the insurer for reconsideration and recalculation of the claimant’s entitlement to weekly payments of statutory benefits in accordance with these reasons and Division 3.3 of the MAI Act

REASONS FOR DECISION

BACKGROUND

On 19 June 2023, Ms Jyoti Patel, (the claimant) was injured in a motor vehicle accident when the car she was driving collided with another car on Richmond Road.
The claimant’s application for personal injury benefits claim form is dated
20 June 2023. Her reported injuries included to the chest, spine, and leg.
In the 12-month period before the accident the claimant was employed in two jobs. She worked part-time as an allied health assistant with RSL Lifecare. She also worked part-time as an allied health assistant with the Westmead Rehabilitation Hospital.
The dispute is is a merit review application 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).
By letter dated 20 July 2023 the claimant wrote to the insurer regarding the effect of her pay increase upon her claim for weekly benefits payment.
By email dated 25 July 2023 the claimant applied for an internal review of the insurer’s decision.
By letter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICMR 46
Decision Date: 8 September 2023

CaseChat Overview and Summary

In the matter of Patel v AAI Limited t/as AAMI, the claimant contested the insurer's calculation of her pre-accident weekly earnings (PAWE) under the Motor Accident Injuries Act 2017, arguing that the insurer should have included a 15% pay rise in the calculation. This pay rise was awarded by the Fair Work Commission on 4 November 2022 and 21 February 2023, and it took effect ten days after the date of the claimant's motor vehicle accident. The claimant sought a merit review of the insurer's decision, claiming that the insurer's refusal to consider the pay rise resulted in a lower PAWE calculation and, consequently, a lower compensation amount. The case was heard via teleconference on 29 August 2023, with the Commission reviewing the insurer's internal review decision, the claimant's written submissions, payslips, financial records, and additional documents provided by the claimant.

The central legal issue before the Commission was whether the claimant's PAWE should include the 15% pay rise awarded by the Fair Work Commission, given that the pay rise took effect ten days after the motor vehicle accident. The claimant argued that the pay rise should be factored into her PAWE calculation as it would have been applicable had she not been involved in the accident. The insurer, however, maintained that the pay rise should not be considered because it commenced after the accident. The Commission had to determine whether the pay rise could be included in the PAWE calculation and, if so, how it should be calculated in accordance with sub-clauses 4(2)(b) and 4(3) of Schedule 1.

The Commission referred to the decision in Towers v GIO to assist in its reasoning, noting that the claimant's action in requesting the pay rise was sufficient to satisfy the definition in sub-clause 4(3) of the Act. The Commission held that the claimant’s entitlement to the pay rise resulted in her being able to earn more on a weekly basis, and therefore, it should be included in the calculation of her PAWE. The Commission remitted the matter back to the insurer for reconsideration and recalculation of the claimant’s PAWE to include the 15% pay rise, in accordance with the relevant sub-clauses of Schedule 1.

The Commission's decision resulted in the insurer being required to recalculate the claimant's PAWE to include the 15% pay rise. This recalculation was to be made in accordance with sub-clauses 4(2)(b) and 4(3) of Schedule 1, ensuring that the claimant's PAWE accurately reflected her increased earnings following the pay rise. The claimant's PAWE was to be recalculated to include the pay rise, with the insurer providing a revised determination to the Commission within a specified timeframe.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By letter dated 4 August 2023 the insurer determined its internal review with a decision to maintain the original decision that the claimant’s pre-accident weekly earnings (PAWE) is calculated to be $922.86 for the purposes of the MAI Act. The claimant continues to dispute the way the insurer has calculated her PAWE requesting that it be calculated to take into account her increased pay from 1 July 2023. The claimant seeks a merit review of the insurer’s decision over her PAWE. The parties appeared before the Commission at a teleconference on 29 August 2023. The documents I have considered are those referred or attached to the application for merit review and the insurer’s reply including the following documents: written submissions, payslips and financial records produced by the claimant and the insurer. I’ve also considered the extra documents supplied by the claimant to the insurer which were forwarded to me through the portal by the insurer on 7 September 2023. The claimant wrote to the insurer by email dated 20 July 2023. She advised that she had received a pay increase which was to take effect from 1 July 2023 and asked whether the insurer would calculate her claim based upon her new pay rate. The claimant wrote that her previous annual pay rate was $41,371.20 which was equivalent to $26.52 per hour. She wrote that her new annual pay rate was $50,312.65 which was equivalent to $32.25 per hour. In her email the claimant wrote:“As previously discussed over the phone a couple of weeks ago, I want to inquire about the status of my pay increase, which was supposed to take effect from 1st July.I have received my latest payslip for the month of July, which reflects the updated pay with the proposed increase.I wish to discuss the possibility of considering my current payment review based on the new pay increase. If I hadn't been involved in the accident, my earnings would have been based on the new pay rate starting from 1st July 2023.To provide some context, here are the details:Old Annual Payrate: $41,371.20, equivalent to $26.52 per hour.New Annual Payrate: $50,312.65, equivalent to $32.25 per hour.I kindly request a review of attached my last payslip for June, showing the old annual pay rate, and July, indicating the new annual pay rate.” In her application to the Personal Injury Commission (Commission) the claimant wrote as follows:“I was provided with the PAWE calculation, which was based on my earnings up to 19th June 2023 and was accurate until 30 June 2023. Subsequently, on 24th March 2023, the Fair Work Ombudsman announced a 15% pay increase for healthcare workers, effective from 1st July 2023, which was implemented by my current employer from 1 July 2023 hence my pay increased as following, Old Annual Payrate: $41,371.20, equivalent to $26.52 per hour, New Annual Payrate: $50,312.65, equivalent to $32.25 per hour. Unfortunately, due to an accident, I couldn't benefit from the pay increment that other employees received. If I hadn't been in the accident, my pay rate would have been adjusted to the new rate, and any employee involved in an accident after that date would have their PAWE calculated based on the newer rate. I believe that the current AAMI policy has led to discrimination against my situation, as the internal review outcome suggests that PAWE situation can allow for pay increase under certain circumstances. These circumstances include situations where employees had entered into an arrangement to start a new job, received a promotion, transitioned from part-time to full-time, or got a pay increase for achieving performance standards. I feel that my situation is no less deserving of consideration, as the pay rise given to healthcare employees by the Fair Work Ombudsman is a reflection of industry-wide performance appreciation.”

Ratio Decidendi

Legal Principle Established

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