Patel v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMR 34
•26 May 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Patel v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 34 |
| CLAIMANT: | Bhaveshkumar Patel |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MERIT REVIEWER: | Maurice Castagnet |
| DATE OF DECISION: | 26 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Dispute about the amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); calculation of pre-accident weekly earnings (PAWE) under Schedule 1 clause 4(1) of the MAI Act; calculation of gross earnings of warehouse assistant from various casual positions sourced through human resources agency; Held – the reviewable decision is varied. |
| DETERMINATIONS MADE: | The reviewable decision concerns the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act, and is therefore a merit review matter under Schedule 2, clause (1)(a) of the Act. 1. The reviewable decision is varied. 2. The claimant’s pre-accident weekly earnings (PAWE) are determined to be $1,378.78. 3. The insurer is to apply PAWE of $1,378.78 when determining the claimant’s entitlements under Division 3.3 of the Act. The effective date of this decision is 2 October 2021. |
Statement of Reasons
INTRODUCTION
There is a dispute between the claimant, Bhaveshkumar Patel and the insurer concerning the amount of weekly payments of statutory benefits that are payable to the claimant under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
BACKGROUND
The claimant is a 37-year-old man who was injured in a motor accident on 1 October 2021.
At the time of the accident, the claimant was employed as a warehouse assistant, working in casual positions sourced through a human resources agency, HR Strategy One.
On 6 October 2021, the claimant applied to the insurer for weekly payments of statutory benefits for loss of earnings. In his application, he stated that at the time of the accident, he was earning $1,228.62 per week.
On 20 October 2021, the insurer accepted liability for making weekly payments for the first 26 weeks.
On 3 December 2021, the insurer decided that the claimant’s pre-accident weekly earnings (PAWE) were in the amount of $653.62. The Personal Injury Commission (the Commission) was not provided with a copy of the decision by either party.
The amount of the claimant’s weekly payments is based on his PAWE, subject to the usual reductions imposed by the Division 3.3 of the MAI Act.
The claimant disagreed with the insurer’s calculation of his PAWE. He sought an internal review of that aspect of the insurer's decision.
On 18 December 2021, the insurer issued a determination affirming its original decision.
On 10 January 2022, the claimant made an application to the Commission seeking a review of the insurer’s review decision. The insurer lodged a reply with the Commission on 22 February 2022.
The application is now before me for determination.
DOCUMENTS CONSIDERED
In making my decision, I have considered the documents and submissions provided to the Commission by the claimant in his application and by the insurer in its reply.
LEGISLATION
In making my decision, I have considered the following:
· the MAI Act;
· Motor Accident Guidelines 2017 (Version 8) (the Guidelines), and
· Motor Accident Injuries Regulation 2017 (the Regulation).
THE DISPUTE
The insurer accepts that the claimant is an earner within the meaning of clause 2(a) Schedule 1 of the MAI Act and therefore entitled to weekly payments of statutory benefits under Division 3.3. of the MAI Act.
The only issue in dispute between the parties is the amount of the claimant’s PAWE and how the information provided by the claimant to the insurer has been applied to calculate it.
THE INSURER’S POSITION
The insurer says that in calculating the claimant’s PAWE, it has applied clause 4(1) of Schedule 1 of the MAI Act by considering the weekly average of the gross earnings received by the claimant as an earner during the 12 months immediately before the day of the motor accident.
The insurer relies on the report of its forensic accountant PKF Accounting (PKF) dated 3 December 2021. Based on the information supplied by the claimant, PKF concluded that the claimant’s gross earnings for the 12 months immediately before the day of the accident was $33,988 and this yielded gross average weekly earnings of $653.62.
THE CLAIMANT’S POSITION
The claimant says that the insurer has incorrectly calculated his PAWE. His 2021 tax return shows that his gross income was $90,868. In the week in which the accident occurred his payslip showed that he earned $1,228.62 per week.
CONSIDERATION
The legislation
Clause 4 of Schedule 1 of the MAI Act provides several methods for calculating an earner’s PAWE depending on the circumstances of the earner’s employment.
It is therefore appropriate to set out the provisions of clause 4 which are as follows:
“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.”
Discussion
Having considered the documents before me, I accept clause 4(1) provides the most appropriate method to calculate PAWE. That is, the claimant’s PAWE should be determined by calculating the weekly average of the gross earnings received by the claimant as an earner during the 12 months immediately before the day of the motor accident.
That was the method used by the insurer in arriving at the claimant’s PAWE of $653.62. The question for me to determine is whether that amount was incorrect as submitted by the claimant.
The documents before me show that the claimant was an earner for the full financial year from 1 July 2020 to 30 June 2021. The documents also show that the claimant was an earner from 1 July 2021 up to the day before the accident.
The claimant was requested by the insurer to provide his tax return for the financial year ending 30 June 2021. The claimant instead provided his income tax notice of assessment for that financial year. That document shows that his ‘taxable income’ was $90,868. However, without the tax return, it cannot be established whether that the entire amount represented the claimant’s income from ‘personal exertion.’ In accordance with clause 3 of Schedule 1 of the MAI Act, ‘loss of earnings’ means, a loss incurred in a person’s income from personal exertion and does not include income such as bank interest, rent proceeds and share dividends.
However, the claimant has provided his Income Statements (or PAYG payment summaries) from his various employments through the human resources agency for the financial year 1 July 2020 to 30 June 2021. These source documents reflect the claimant’s income from personal exertion.
The total of his gross earnings in these Income Statements is summarised in the following table:
ATO Income Statements 1/7/20 to 30/6/21
| Employer | Period | Gross Payments |
| Rovium Pty Ltd | 22/3/21 to 5/4/21 | 462 |
| Action James Pty Ltd | 31/12/20 to 27/6/21 | 7882.90 |
| Australian Task Force Pty Ltd | 20/11/20 to 30/6/21 | 308.69 |
| Mitran Da Dhaba Pty Ltd | 1/7/20 to 5/7/20 | 156.18 |
| Jasco Pty Ltd | 15/7/20 to 10/8/20 | 3353.05 |
| R/W Labour Hire No2 Pty Ltd | 1/7/20 to 30/6/21 | 7695.04 |
| Satu Mare Pty Ltd | 1/7/20 to 30/6/21 | 0 |
| ASAP Recruitment Pty Ltd | 1/7/20 to 30/6/21 | 112.58 |
| Labour Force Imipex Personnel Pty Ltd | 1/7/20 to 30/6/21 | 2759.57 |
| AWX Pty Ltd | 1/7/20 to 30/6/21 | 2914.39 |
| Technical Focus Pty Ltd | 3/8/20 to 30/6/21 | 175.70 |
| Zoom Recruitment Industrial NSW Pty Ltd | 1/7/20 to 30/6/21 | 4721.09 |
| Vari Workforce Pty Ltd | 1/7/20 to 30/6/21 | 0 |
| Proquest Pty Ltd | 1/7/20 to 30/6/21 | 4174.29 |
| Strategy 1 HR Pty Ltd | 1/7/20 to 30/6/21 | 37571.14 |
| AWX Labour Pty Ltd | 3/7/20 to 30/6/21 | 541.36 |
| Regal Recruitment Pty Ltd | 1/7/20 to 30/6/21 | 382.91 |
| TOTAL GROSS PAYMENTS: | $ 73,480.89 |
The claimant has also provided his Income Statements and a payslip for his gross earnings from his various employments with the human resources agency in the period 1 July 2021 to 30 September 2021.
The total of these gross earnings is summarised in the following table:
Income Payments and Payslip 1/7/21 to 1/10/21
Employment
Period
Gross Payments
Strategy 1 HR Pty Ltd
27/9/21 to 3/10/21 (adjusted to 4/7 days)
702
Synergy Recruitment Solutions Pty Ltd
1/8/21 to 4/8/21
1965.66
The Trustee for Worx 4U
12/8/21 to 22/8/21
1093.50
Strategy 1 HR Pty Ltd
1/7/21 to 27/9/21 (Payslip – Page 138 of Reply)
12676.48
Total Gross Payments
$16,437.64
The claimant’s total gross earnings from his Income Statements for the financial year ending 30 June 2021 is $73,481. Since the claimant has been an earner since at least 1 July 2020, I consider that for the purposes of clause 4(1) of Schedule 1, it is reasonable to attribute on a pro rata basis, his average gross weekly earnings for the period 1 October 2020 to 30 June 2020 from his gross earnings of that financial year. On that basis, I calculate that period to be 39 weeks and 1 day, which equates to gross earnings of $55,259.
The claimant’s gross earnings for the period from 1 July 2021 to 30 September 2021 is $16,438.
The claimant’s total average gross earnings for the period 1 October 2020 to 30 September 2021 is therefore $71,697. That sum divided by 52 weeks yields gross average weekly earnings of $1,378.78.
I therefore find that the amount of the claimant’s PAWE for the purposes of weekly payments of statutory benefits under Division 3.3 of the MAI Act is $1,378.78.
In conformity with section 7.13(1) of the MAI Act, my role is to decide what the correct and preferable decision is, having regard to the material before me and any applicable written or unwritten law. I have made that finding based on the material before me and having considered the facts and circumstances of the matter.
CONCLUSION
The reviewable decision is varied.
The claimant’s PAWE is determined to be $1,378.78.
The insurer is to apply PAWE of $1,378.78 when determining the claimant’s entitlements under Division 3.3 of the MAI Act.
The effective date of this decision is 2 October 2021.
The claimant was self-represented. The issue of legal costs does not arise.
Maurice Castagnet
Merit Reviewer
Personal Injury Commission
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