Patel v Insurance Australia Limited t/as NRMA Insurance (No 1)
[2022] NSWPICMR 63
•3 November 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Patel v Insurance Australia Limited t/as NRMA Insurance (No 1) [2022] NSWPICMR 63 |
| ClaimanT: | Bhaveshkumar Patel |
| Insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Merit Reviewer: | Maurice Castagnet |
| DATE OF DECISION: | 3 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Merit review; dispute about the amount of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); calculation of pre-accident weekly earnings (PAWE) under Schedule 1 clause 4(1) of the 2017 Act; where the claimant received gross earnings as a warehouse assistant from various casual positions sourced through human resources agencies; PAWE incorrectly calculated; Held – the reviewable decision is varied. |
| Determinations made: | 1. The reviewable decision is varied. 2. The claimant’s pre-accident weekly earnings (PAWE) are determined to be $1,040.11. 3. The insurer is to apply PAWE of $1,040.11 when determining the claimant’s entitlements under Division 3.3 of the Act. 4. The effective date of this decision is 8 October 2020 |
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 38-year-old man who was injured in a motor accident on
8 October 2020.At the time of the accident, the claimant was employed as a warehouse assistant, working in casual positions sourced through various human resources agencies.
On 16 October 2020, 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 $1,000 per week.
The insurer accepted liability for making weekly payments for the first 26 weeks. On
18 November 2020, the insurer notified the claimant that his pre-accident weekly earnings (PAWE) were calculated at $894.25.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 9 December 2020, the insurer issued a determination affirming its original decision.
It appears that on 23 July 2021 the claimant made a further request to the insurer to review its decision. On 5 August 2021, the insurer notified the claimant that the matter was “not reviewable” again as no new information had been provided for review.
On 15 August 2022, the claimant made an application to the Personal Injury Commission (the Commission) seeking a review of the insurer’s review decision.
The application was accepted by the Commission. The insurer lodged a reply with the Commission on 24 August 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. I also considered the submissions made by the insurer.
LEGISLATION
In making my decision, I have considered the following:
· the MAI Act;
· Motor Accident Guidelines 2017 (Version 8.2) (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 cl 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 cl 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.
On that basis, the insurer submits that the relevant period to be applied to calculate the claimant’s PAWE is between 8 October 2019 and 7 October 2020.
The insurer says that by way of documentation for the calculation of PAWE, the claimant provided some, but not all of his payslips for the relevant period. The claimant provided “ATO Online Services screenshots” of payslips which showed a total income of $22,625[1]. The claimant also provided his Notice of Assessment for the financial year ending 30 June 2020 which showed a taxable income of $46,501.[2]
[1] The insurer’s documents at [R7].
[2] The insurer’s documents at [R6].
The insurer says that:
“Due to the incomplete nature of the other documents provided, the insurer has relied on the Notice of Assessment as the most accurate and holistic of the financial evidence provided. Therefore, $46,501 divided by 52 weeks to [sic] $894.25 per week.”
THE CLAIMANT’S POSITION
The claimant contends that the insurer has incorrectly calculated his PAWE. He says that in his application for personal injury benefits, he stated that his gross earnings were at least $1,000. In support of his contention, he relies on the information that he provided to the insurer.
THE RELEVANT 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 cl 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.”
RESOLUTION
Having considered the documents before me, I accept cl 4(1) provides the most appropriate method to calculate the claimant’s 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 $894.25. The question that remains for me to address is whether that amount was correctly calculated by the insurer. Having considered the documents before me (that were provided by the insurer), I find that the amount was incorrectly calculated. My reasons follow.
The documents before me show that the claimant was an earner for the full financial year from 1 July 2019 to 30 June 2020. They also show that the claimant was an earner from 1 July 2020 up to the day before, and indeed on the day of the accident.
The claimant provided the insurer with his Notice of Assessment for the financial year ending 30 June 2020. That document shows that his ‘taxable income’ was $46,501. However, without source documents such as the tax return or PAYG payment summaries, it cannot be established whether the entire amount represents the claimant’s income from ‘personal exertion’. In accordance with cl 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. Equally, it could mean that the amount of “taxable income” in that document represents an amount that is less than the claimant’s income from personal exertion because of tax deductions that he may have claimed.
From the documents before me, it is apparent that the claimant did not provide the insurer with the relevant tax return. It is however apparent that he provided the insurer with his “Pre-filing report 2020” issued by the Australian Taxation Office.[3] That report shows the claimant’s PAYG Payment Summaries for the financial year 1 July 2019 to 30 June 2020. These source documents reflect the claimant’s income from personal exertion. It is inexplicable why the insurer did not utilise this document in calculating the claimant’s PAWE.
[3] The insurer’s documents at [R8].
The total of his gross earnings in the report is summarised in the following table:
2019-2020 PAYG Payment Summaries
| Employer | Period | Gross Payments |
| Mitran Da Dhaba Pty Ltd | 01/06/2020-30/06/2020 | $1,261 |
| One Aim Property Services Pty Limited | 27/05/2020-30/06/2020 | $764 |
| APS Group (Industrial) Pty Ltd | 21/10/2019-03/11/2019 | $3,186 |
| ASAP Recruitment Pty Ltd | 01/07/2019-30/06/2020 | $583 |
| Chandler Personnel Services Pty Limited | 01/07/2019-30/06/2020 | $2,939 |
| Labourforce Impex Personnel Pty Limited | 01/07/2019-30/06/2020 | $585 |
| Momentum Consulting Group Pty Ltd | 02/12/2019-30/06/2020 | $8,219 |
| Proquest Pty Ltd | 01/04/2020-30/06/2020 | $1,991 |
| Ranstad Pty Limited | 14/02/2020-11/03/2020 | $5,709 |
| Regal Recruitment Pty Ltd | 18/12/2019-30/06/2020 | $3,847 |
| Staff Australia Payroll Services Pty Ltd | 14/10/2019-04/12/2019 | $1,069 |
| Tanidan Pty Ltd | 01/07/2019-30/06/2020 | $12,902 |
| The Trustree for Westwise Recruitment Trust | 04/11/2019-30/06/2020 | $443 |
| Vari Workforce Pty Ltd | 19/07/2019-30/06/2020 | $545 |
| White Collar Blue Pty Ltd | 04/10/2019-30/06/2020 | $947 |
| Zoom Recruitment Industrial NSW Pty Ltd | 28/10/2019-30/06/2020 | $3,912 |
| The Trustee for Hoban Recruitment Unit Trust | 01/07/2019-30/06/2020 | $442 |
| Total Gross Payments | $49,344 |
The claimant also provided the insurer with a number of payslips for his gross earnings from various employments through the human resources agencies in the period between 1 July 2020 and 7 October 2020.
The total of these gross earnings is summarised in the following table:
Income Payments and Payslips 1/7/20 to 7/10/20
Employment Period Gross Payments AWX Pty Ltd 01/07/20-06/10/2020 $2,914.39 Jasco Pty Ltd 04/08/2020-10/08/2020 $3,353.05 National Work Force 01/07/2020-27/09/2020 $6,608.99 Strategy 1 HR Pty Ltd 28/09/2020-04/04/2020 $4,994.88 Mitran Da Dhaha Pty Ltd 01/07/2020-05/07/2020 $156.18 Total Gross Payments $18,027.49
The claimant’s total gross earnings from the PAYG Payment Summaries in the financial year ending 30 June 2020 is $49,344. Since the claimant was an earner since at least 1 July 2020, I consider that for the purposes of cl 4(1) of Schedule 1, it is reasonable to attribute on a pro rata basis, his average gross weekly earnings for the period 8 October 2019 to 30 June 2020 from his gross earnings of that financial year. On that basis, I calculate that period to be 38 weeks, which equates to gross earnings of $36,059.
The claimant’s gross earnings for the period from 1 July 2020 to 7 October 2020 is $18,027.49. That is for a period of 14 weeks.
In summary, the claimant’s total average gross earnings for the period 8 October 2019 to 7 October 2020 is therefore $54,086. That sum divided by 52 weeks yields gross average weekly earnings of $1,040.11.
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 $1,040.11.
In conformity with s 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 $1,040.11.
The insurer is to apply PAWE of $1,040.11 when determining the claimant’s entitlements under Division 3.3 of the MAI Act.
The effective date of this decision is 8 October 2020.
The claimant was self-represented. The issue of legal costs does not arise.
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