Schutz v AAI Limited t/as GIO
[2025] NSWPICMR 22
•25 August 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Schutz v AAI Limited t/as GIO [2025] NSWPICMR 22 |
CLAIMANT: | Paul Schutz |
INSURER: | AAI Limited t/as GIO |
MERIT REVIEWER: | Bianca Montgomery-Hribar |
DATE OF DECISION: | 25 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute regarding amount of weekly payments of statutory benefits under section 3.7; claimant self-employed small business owner; late claim; weekly payments limited to second entitlement period; statutory interpretation of section 3.7, AB (a pseudonym) v Independent Broad-Based Anti-Corruption Commission considered and applied; whether calculation of post-accident earnings for the purposes of section 3.7(2) should consider entire financial year; Held – section 3.7(2) requires post-accident earnings to be calculated by reference to earnings after the first entitlement period; there is no basis upon which to base the calculation under section 3.7(2) on the full financial year if that period is not after the first entitlement period; claimant’s entitlement to be calculated accordingly; reviewable decision set aside. |
DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 1. The reviewable decision is set aside. 2. In substitution, it is determined that: a. the claimant’s pre-accident weekly earnings are $2,340.85, and b. the claimant’s post-accident earnings are: i. for the period 30 November 2023 to 6 December 2023 (inclusive): $nil, being a total loss of earnings for the purposes of s 3.7(2)(a); ii. for the period 7 December 2023 to 31 March 2024 (inclusive): $1,745.62, being a partial loss of earnings for the purposes of s 3.7(2)(b), and iii. for the period 1 April 2024 to 24 August 2024 (inclusive): $nil, being a total loss of earnings for the purposes of s 3.7(2)(a). 3. The insurer is to reassess the claimant’s entitlement to statutory benefits for the second entitlement period on the basis set out in (2) and attend to any shortfall in payment forthwith. 4. The insurer is to pay the claimant’s legal costs in the amount of 16 monetary units and disbursements in the amount of $4,820, plus GST. |
STATEMENT OF REASONS
INTRODUCTION
Paul Schutz (claimant) was involved in a motor vehicle accident on 26 August 2023 (accident). On 30 November 2023, Mr Schutz made an application for personal injury benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as GIO (insurer).
On 21 December 2023, the insurer accepted liability for statutory benefits for up to 52 weeks after the accident. This entitles Mr Schutz, inter alia, to weekly payments of statutory benefits.
A dispute has arisen between Mr Schutz and the insurer as to the correct calculation of his post-accident earnings. This dispute primarily arises as Mr Schutz is a self-employed business owner.
In summary, the insurer submits that Mr Schutz’s post-accident earnings should be calculated based on his profit and loss statements for specific periods as he does not draw a wage. Mr Schutz submits that, due to the nature of his business, this would be unfair and instead his post-accident earnings should be calculated based on the full financial year.
Schedule 2 clause 1(a) provides that the amount of statutory benefits that is payable under Division 3.3 is declared to be a merit review matter for the purposes of Part 7 of the MAI Act. As this dispute has been the subject of an internal review, s 7.11 of the MAI Act has been satisfied and the jurisdiction of the Personal Injury Commission (the Commission) is enlivened.
Relevant legislation
Mr Schutz’s entitlement to weekly payments arises from Part 3 of the MAI Act. Relevantly, ss 3.5 to 3.7 of Division 3.3 of the MAI Act provide:
“3.5 Definitions
(1)In this Division—
first entitlement period, in respect of an injury resulting from a motor accident, means the period of 13 weeks that starts on the day after the day of the motor accident.
maximum weekly statutory benefits amount—see section 3.9.
minimum weekly statutory benefits amount—see section 3.10.
second entitlement period, in respect of an injury resulting from a motor accident, means the period of 65 weeks that starts on the day after the end of the first entitlement period.
(2)Words and expressions in this Division that are defined in Schedule 1 have the meanings provided by that Schedule. The regulations may amend Schedule 1.
Note—
Definitions include “earner”, “loss of earnings”, “pre-accident weekly earnings”, “pre-accident earning capacity” and “post-accident earning capacity”.
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) or post-accident earnings, whichever is the greater, for the first entitlement period.
(3) A weekly payment of statutory benefits to a person under this section is not to exceed the maximum weekly statutory benefits amount less the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, for the first entitlement period.
(4)A weekly payment of statutory benefits to a person under this section is not to be less than the minimum weekly statutory benefits amount or the person’s pre-accident weekly earnings, whichever is the lesser.
(5)If a weekly payment of statutory benefits is payable under this section, but further information is required to determine the amount of the payment, interim payments are to be made in accordance with the Motor Accident Guidelines until the correct amount of the payment can be determined and paid.
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 earnings—80%, or
(b) in the case of partial loss of earnings—85%,
of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the first entitlement period.
(3)A weekly payment of statutory benefits to a person under this section is not to exceed the maximum weekly statutory benefits amount less the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the first entitlement period.
(4)A weekly payment of statutory benefits to a person under this section is not to be less than the minimum weekly statutory benefits amount or the person’s pre-accident weekly earnings, whichever is the lesser.”
Section 3.23 provides that weekly payments of statutory benefits are payable on a fortnightly basis unless the Motor Accident Guidelines (Guidelines) otherwise provide or the parties to a claim otherwise agree.
Schedule 1 sets out relevant definitions for the purposes of weekly payments of statutory benefits under Division 3.3, including the meaning of “earner”, “loss of earnings”, “pre-accident weekly earnings” and “post-accident earning capacity”.
Relevantly, cl 3 of Sch 1 provides:
“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.
It is not in dispute that, due to the operation of s 6.13 of the MAI Act and regulation 8A of the Motor Accident Injuries Regulation 2017 (Regulations), Mr Schutz is not entitled to payment of statutory benefits for any period prior to 30 November 2023.
Procedural history
Two preliminary conferences were held in this matter.
At the first preliminary conference on 10 March 2025, Mr Schutz’s pre-accident weekly earnings (PAWE) was in issue, as was the correct calculation of his post-accident weekly earnings. The insurer sought and Mr Schutz agreed to provide additional information on these issues.
It was also brought to the parties’ attention that several of the documents referred to Mr Schutz’s entitlement to weekly payments as commencing on 7 December 2023 rather than 30 November 2023. The parties confirmed that the correct commencement date is 30 November 2023. It was agreed that Mr Schutz is only entitled to statutory benefits from the date his claim was made, being 30 November 2023, to 24 August 2024.
As noted above, a key aspect of this dispute is the method of calculating Mr Schutz’s “post-accident earnings”. As this issue involves principles of statutory interpretation regarding the MAI Act, I provided the parties with an opportunity to make submissions on this point.
On 7 May 2025, a second preliminary conference was held in this matter. This was primarily for the purpose of resolving an interlocutory dispute between the parties, being whether the insurer should be provided with an opportunity to obtain an expert report from a forensic accountant. This was opposed by the claimant. For the reasons set out in the preliminary conference report, I considered that the interests of justice weighed in favour of granting the insurer leave to obtain and rely on an expert report from a forensic accountant. Directions were made accordingly.
Following receipt of the parties’ evidence and submissions, I noted that the claimant’s certificates of fitness / certificates of capacity had not been provided. In response to a query raised through the Portal and at the 7 May 2025 preliminary conference, the parties confirmed that, despite the relevant certificates of fitness / certificates of capacity certifying periods of restricted capacity and periods of fitness for pre-injury duties, the insurer made no earning capacity decision and assessed Mr Schutz’s entitlement to weekly benefits based on his post-accident earnings. Mr Schutz’s post-accident earnings is agreed by the parties to be the relevant measure of his earning capacity.
Accordingly, the parties agreed that Mr Schutz’s post-accident earning capacity is not in issue and the dispute is confined to the issue of Mr Schutz’s post-accident earnings as opposed to his post-accident earning capacity. Whether s 3.7(2)(a) or (b) of the MAI Act applies will depend on whether the Commission determines that Mr Schutz had a total or partial loss of earnings after the first entitlement period.
On 12 June 2025, following receipt and service of the insurer qualified forensic accountant report, the insurer conceded that the Mr Schutz’s PAWE ought to be calculated as $2,340.85.
On the papers
Section 52(3) of the PIC Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both the parties have submitted that it is appropriate for this dispute to be determined on the papers and without holding a formal hearing.
Having considered s 52 of the PIC Act, Procedural Direction PIC2 and the documents before me, I am satisfied that I have sufficient information available to me to allow me to determine the issues in dispute ‘on the papers’ and without holding a formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS
The insurer has conceded that Mr Schutz’s PAWE should be calculated as $2,340.85.
Following the insurer’s submissions in respect of the statutory benefit percentage to be applied, the claimant’s qualified forensic accountant, Furzer Crestani, conceded that they had applied the incorrect statutory benefit percentage in their initial report.
Accordingly, the parties’ submissions and evidence on these points have not been summarised.
Claimant’s submissions
Mr Schutz relies on submissions dated 4 April 2025 and 17 July 2025.
Mr Schutz submits that any entitlement to weekly benefits is to be assessed pursuant to s 3.7 of the MAI Act and that, although he was certified with some capacity and was performing limited duties within the business, he has suffered a total loss of earnings. Accordingly, Mr Schutz submits that he is entitled to 80% of his PAWE.
Mr Schutz relies on the supplementary report of Mr Chris Katehos of Furzer Crestani Forensic Accountants dated 7 July 2025. Mr Katehos reviewed the report of Lance Kahler of Vincents. He opines that Mr Schutz’s earnings should be considered over the entire financial year as this provides a fairer basis for the calculation.
Mr Schutz submits that the full financial year approach is similar to how depreciation was treated by Mr Katehos when assessing his PAWE. It is submitted that, placing the accelerated benefit allowed by the ATO into one financial year would work unfairly to a claimant when calculating PAWE. Similarly, trying to isolate earnings in closed periods within a financial year can also operate unfairly.
Mr Schutz points to the observations made by Mr Katehos that:
a. Gross profits for the period 7.12.23 to 31.03.24 is positive ($50,488) and for the period 26.08.23 to 6.12.23 is negative ($59,814), which is highly unusual and suggestive of timing issues in respect of recording sales.[1]
b. Some annual expenses are applied. If the examination is limited to closed periods this creates artificial inflation. It is not appropriate to “cherry pick” certain periods, and a more balanced and fair approach is to consider the average of the relevant post-accident period.[2]
[1] Supplementary Report of Furzer Crestani Forensic Accountants dated 7 July 2025 at [8.2.5] and [8.2.6].
[2] Supplementary Report of Furzer Crestani Forensic Accountants dated 7 July 2025 at [8.2.7] and onwards.
Mr Schutz submits that there are three major flaws in the methodology adopted by Vincents, as set out at paragraph 9 of Mr Katehos’s supplementary report.
Mr Schutz submits that his earnings for the period 30 November 2023 to 24 August 2024 (38.86 weeks) were nil. Accordingly, Mr Schutz submits that he is entitled to be paid 80% of his PAWE ($2,340.85), being $1,872.68 x 38.86 weeks = $72,767.00 less amount of $15,939.96 received. This results in $56,827.00 owed by the insurer.[3]
[3] It is noted that there seems to be a minor typographical error in the claimant’s calculations, and the Commission calculates $1,872.68 x 38.86 to be $72,772.34. Accordingly, the amount said to be owed is calculated to be $72,772.34 - $15,939.96 = $56,832.38.
In respect of his earning capacity / loss of earnings, Mr Schutz submits that weekly payments are calculated, in the context of self-employment, by a reference to income from personal exertion: Sch 1 cl 3 of the MAI Act. Relevantly, Mr Schutz relies on subclause (2)(b) which defines a person’s income from personal exertion to be the proceeds of any business carried on by the person either alone or in partnership with any other person.
Reliance is placed on Insurance Australia Limited t/as NRMA Insurance v Iskander [2024] NSWPICMRP 5 where, at [106], the review panel stated that “Clause 3(2)(b) of Sch 1 should be read in conjunction with cl 3(1) of Sch 1 which defines loss of earnings as “a loss incurred or likely to be incurred in a person’s income from personal exertion”. The Panel is of the view the income from personal exertion refers to the claimant’s share of the proceeds of the business….” (Mr Schutz’s emphasis).
Insurer’s submissions
The insurer relies on submissions dated 24 February 2025 and 10 June 2025.
The insurer’s submissions dated 10 June 2025 concede that Mr Schutz’s weekly payments are payable from 30 November 2023, being the date on which he made his claim.[4]
[4] The insurer’s initial submissions dated 24 February 2025 referred to the period 7 December 2023 to 24 August 2024. However, at the preliminary conference on 10 March 2025, the parties confirmed that the relevant period was 30 November 2023 to 24 August 2024.
On 5 June 2024, the insurer determined that Mr Schutz had not suffered a loss of income during the period 7 December 2023 and 31 March 2024. This decision was affirmed on internal review in a decision dated 21 June 2024.
The insurer notes that Mr Schutz’s profit and loss statement for the period 7 December 2023 to 31 March 2024 reveals a net profit of $35,107.06. The insurer therefore calculated his earnings during his period to be an average of $1,881.69 per week. As this exceeded the insurer’s initial calculation of Mr Schutz’s PAWE, the insurer determined that he had not suffered a loss of income.
On 30 July 2024, the insurer determined that Mr Schutz was entitled to weekly benefits of $6,438.21 for the period 7 December 2023 to 30 June 2024. On 22 August 2024, an internal review varied this decision such that the claimant was entitled to $8,004.05 for this period.
The insurer notes Mr Schutz’s profit and loss statement for the period 1 April 2024 to 30 June 2024 revealed a net loss of $20,055.77. The insurer calculated Mr Schutz’s earnings during this period to be nil, and therefore his entitlement to weekly benefits for this period to be $769.62 x 13 weeks x 80% = $8,004.05.
The insurer notes Mr Schutz’s profit and loss statement for the period 1 July 2024 to 24 August 2024 revealed an operating profit of $766.01 and a net loss of $656.04. The insurer calculated Mr Schutz’s entitlement during this period (7.86 weeks) as $6,049.21 (PAWE of $769.62 x 7.86 weeks) - $766.01 (operating profit) x 85% = $4,658.36. Accordingly, on 16 September 2024, the insurer determined that Mr Schutz was entitled to weekly benefits of $4,658.36 for the period 1 July 2024 to 24 August 2024.
The insurer notes that Mr Schutz’s profit and loss statements for the financial year ending 30 June 2024 suggests an overall profit of $40,699.40.
The insurer submits that Mr Schutz’s individual tax return and notice of assessment for the financial year ending 30 June 2024 is inconsistent with his profit and loss statements.
The insurer agrees that the dispute is confined to the issue of Mr Schutz’s post-accident earnings, as opposed to post-accident earning capacity.
The insurer relies on the report of Lance Kahler dated 21 May 2025, which opines:
a. Mr Katehos’s conclusion that the claimant’s post-accident earnings should be assessed as Nil includes the significant trading losses incurred by the claimant during the first entitlement period.
b. With respect to statutory benefits payable during the second entitlement period, the MAI Act specifically states that the benefit payable is the relevant percentage of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is greater, after the first entitlement period.
c. Post-accident earnings during the second entitlement period must be based on the claimant’s earnings after the end of the first entitlement period; and
d. Where a self-employed claimant has produced periodic post-accident trading results, it is appropriate to calculate the claimant’s post-accident earnings during the relevant distinct periods, noting the likely changes in post-accident earnings as a claimant’s capacity for work changes from time to time.
Mr Kahler relied on the profit and loss statements provided by Mr Schutz for the period 7 December 2023 to 24 August 2024 and adopted the same approach to assess his post-accident earnings as was used to assess his PAWE. Mr Kahler assessed Mr Schutz’s post-accident earnings as:
a. An average of $1,745.61 per week during the period 7 December 2023 to 31 March 2024, and
b. Losses for the period 1 April 2024 to 24 August 2024.
This was calculated to be an entitlement of $47,954 before tax for the period 30 November 2023 to 24 August 2024. The insurer conceded there has been an underpayment of $32,014.
The insurer submits that utilising Mr Schutz’s earnings over the full 2024 financial year to assess his entitlement to weekly benefits for the period 30 November 2023 to 24 August 2024 will result in him being compensated for periods during which he is not entitled to weekly benefits.
EVIDENCE
Given the insurer’s concession regarding Mr Schutz’s PAWE, documents regarding this issue have not been summarised.
Application for personal injury benefits
Mr Schutz’s application for personal injury benefits dated 30 November 2023 has been considered. Relevantly, this notes that he was off work for one week due to the accident and that he is a self-employed “timber worker / sawmill”. His earnings at the time of the accident are noted as “N/A”.
Australian Tax Office documents
The following activity statements for Mr Schutz have been considered:
a. the period July 2023 to September 2023, with a reported value of total sales of $78,110.00, inclusive of GST;
b. the period October 2023 to December 2023, with a reported value of total sales of $68,094.00, inclusive of GST, and
c. the period January 2024 to March 2024, with a reported value of total sales of $55,906.00, inclusive of GST.
The Notice of Assessment – year ended 30 June 2024 shows Mr Schutz’s taxable income as $0.
Mr Schutz’s 2023-24 tax return customer copy reports his assessable government industry payments to be $67,649.00 and other business income to be $170,991, resulting in a total non-primary production business income of $238,640.00. Mr Schutz’s total non-primary production expenses totalled $199,471.00, resulting in a NPP net loss from the business of $10,831.
The Profit & Loss (Cash) statement for PA Schutz Fencing for the following periods are noted:
Period
Total income ($)
Total cost of sales ($)
Gross profit ($)
Total expense ($)
Operating Profit ($)
Total Other Income ($)
Total Other Expenses ($)
Net Profit / (Loss) ($)
07/23 to 12/23
79,246.61
53,618.58
25,628.03
36,879.61
(11,251.58)
59,963.40
20,897.22
27,814.60
01/07/23 to 25/08/23
36,738.64
7,535.12
29,203.52
11,501.58
17,704.94
15,889.00
0
33,590.94
07/23 to 09/23
57,371.89
32,271.52
25,100.37
15,711.31
9,389.06
15,889.00
14,131.86
11,146.20
26/08/23 to 30/09/23
20,633.25
24,736.40
(4,103.15)
4,209.73
(8,312.88)
0
14,131.86
(22,444.74)
10/23 to 12/23
21,874.72
21,347.06
527.66
21,168.30
(20,640.64)
44,074.40
6,765.36
16,668.40
26/08/23 to 31/03/24
84,330.65
55,206.69
29,123.96
32,454.31
(3,330.35)
51,391.80
20,897.22
27,164.23
07/23 to 03/24
121,069.29
62,741.81
58,327.48
43,995.89
14,371.59
67,280.80
20,897.22
60,755.17
07/12/23 to 31/03/24
52,988.25
9,123.23
43,865.02
8,757.96
35,107.06
15,339.80
0
50,446.86
01/24 to 03/24
41,822.68
9,123.23
32,699.45
7,076.28
25,623.17
7,317.40
0
32,940.57
04/24 to 06/24
50,312.41
36,875.79
13,436.62
33,360.39
(19,923.77)
368.00
500
(20,055.77)
01/07/24 to 24/08/24
44,151.48
30,422.73
13,728.75
12,962.74
766.01
1,004.00
2,656.04
(656.04)
Bank Statements
Mr Schutz’s bank statements for the periods 01 July 2023 to 24 August 2024 have been considered. It is noted that these have been heavily redacted to exclude non-business transactions.
Furzer Crestani Forensic
Report dated 19 December 2024
The report of Chris Katehos of Furzer Crestani Forensic dated 19 December 2024 has been considered. It was noted that Mr Schutz has been able to return to limited duties in a reduced capacity.
Mr Katehos examined Mr Schutz’s 2023 financial year personal income tax return and noted that he declared a profit of $40,128 from his business activities. His largest expense for the year was depreciation of $104,426. Mr Katehos noted this depreciation expense was extraordinarily large relative to the level of turnover and required further investigation.
Mr Katehos noted that the 2024 financial year depreciation expense was $16,030.
Based on the supporting documentation, the basis for the 2023 financial year depreciation expense was due to the purchase and immediate “write off” of three assets. Mr Katehos opined that the company’s tax agent has taken advantage of tax legislation and applied accelerated depreciation expense deductibility provisions. He opined that the true economic annual depreciation expense of the business in the 2023 financial year was $19,401.
Mr Katehos opined that the true profits of the claimant’s business was:
a. $124,918 for the 2023 financial year;
b. $15,578 for the period 1 July 2023 to 25 August 2023, and
c. A loss of $11,031 for the full 2024 financial year. This translates to a loss of $26,609 for the post-accident period of 26 August 2023 to 30 June 2024.
Mr Katehos calculated Mr Schutz’s PAWE to be $2,340.85.
In respect of Mr Schutz’s post-accident earnings, Mr Katehos assumed a post-accident income of Nil, notwithstanding that he determined Mr Schutz had incurred trading losses.
Mr Katehos calculated Mr Schutz’s underpayment as $61,375 for the period 30 November 2023 to 52 weeks post-accident, at an entitlement of 85% PAWE.
Report dated 7 July 2025
The report of Furzer Crestani Forensic dated 7 July 2025 has been considered.
This notes that the Vincents Report at VR 3.6 and 3.7 agreed with the PAWE calculation of $2,340.85.
Mr Katehos summarises Mr Schutz’s profit and loss statements for periods in the 2024 financial year as follows:
Period
Sales
Gross Profit
Total Business Profit after Reconciliation
Pre Accident
1/07/23 to 25/08/23
36,739
28,538
18,591
Post Accident
26/08/23 to 6/12/23
30,952
(3,285)
(59,814)
7/12/23 to 31/03/24
52,988
43,865
50,448
1/04/24 to 30/06/24
50,312
13,436
(20,056)
Total (FY2024)
170,991
82,554
(10,831)
Mr Katehos opines that it is highly unusual that gross profit is negative in the period 1 July 2023 to 25 August 2023.[5] This suggests timing issues with the recording of sales and/or timing issues with the recording of cost of sale items.
[5] It is noted that the profit in this period is reported to be positive. It is assumed Mr Katehos is referring to the subsequent period of 26 August 2023 to 6 December 2023.
Mr Katehos also observes that there are significant variations in the trading results for the three post-accident trading periods, where two periods recorded losses, one recorded a profit, and an overall loss of $29,422 was recorded in the post-accident period.
He opines that the non-apportionment of expenses over all periods may have been captured in one period only. For example, annual expenses recorded in the period 1 April 2024 to 30 June 2024 that were not recorded in the other three periods of the 2024 financial year. For example, depreciation of $16,030 and public liability insurance of $1,547.
Mr Katehos also notes potential timing issues with the recording of expenses. For example, even though sales are higher in the period 7 December 2023 to 31 March 2024 compared to the period 1 April 2024 to 30 June 2024, expenses are significantly lower. He opines that this suggests an artificial inflation in notional profit in the period 7 December 2023 to 31 March 2024, which is to the insurer’s benefit. He provides the following analysis:
Item
Ref
7/12/23 to 31/03/24
VR Schedule C
a1/04/24 to 30/6/24
VR Schedule C
bVariance
c = a - b
Gross Sales
A
52,988
50,312
2,676
Cost of Sales
B
9,123
36,876
(27,753)
Operating Expenses (Excl. depreciation and PLI)
C
8,757
15,783
(7,026)
Notional Profit (Excl. depreciation and PLI)
D=A-B-C
35,108
(2,347)
37,455
Mr Katehos opines that it is not appropriate to “cherry pick” certain periods as undertaken in the Vincents Report, as it appears that a number of discrepancies have arisen due to the accounting treatment and timing recognition of income and expenses in the profit and loss statements of the different periods.
Mr Katehos opines that the appropriate approach is to consider the average of the total post-accident period. This will “iron out” any fluctuations caused by the factors identified above.
In respect of the Vincents Report, Mr Katehos opines that the assessment of the claimant’s post-accident earnings is artificially higher in the period 30 November 2023 to 31 March 2024 to the insurer’s benefit due to:
a. Vincents not attempting to assess the claimant’s post-accident earnings for the period 30 November 2023 to 6 December 2023 and instead relying on the claimant’s profit and loss statements for the period from 7 December 2023 to 24 August 2024. Mr Katehos assumes that, had Vincents undertaken a similar exercise to that he performed, it would be difficult to explain the significant fluctuations in post-accident recorded results;
b. while the Vincents Report recognised that depreciation expense is an annual expense and should be amortised over the full year rather than captured in one period, it failed to undertake a similar exercise for public liability insurance nor consider the possibility that other expenses have been recorded on a similar basis, and
c. Vincents failing to consider and make adjustments for why costs and expenses were significantly lower in the first period (7 December 2023 to 31 March 2024) compared with the second period (1 April 2024 to 30 June 2024) despite sales being higher.
Mr Katehos prepared updated calculations on Mr Schutz’s “PAWE underpayment” using the 80% rate, opining that this is $56,827. This is based on Mr Schutz having no earnings during the period.
Vincents Report
The report by Lance Kahler of Vincents dated 21 May 2025 has been considered. Mr Kahler noted he had reviewed the report of Furzer Crestani, and he had been instructed that the claimant is entitled to statutory benefits for the period 30 November 2023 to 24 August 2024.
Mr Kahler noted that he agreed with the approach of Furzer Crestani in respect of their assessment of the claimant’s PAWE to be $2,340.85.
In respect of the claimant’s post-accident earnings, Mr Kahler relied on the profit and loss statements provided by the claimant for the period 7 December 2023 to 24 August 2024. He stated this period represents the claimant’s trading results for all but the first week of the period that he has been asked to calculate.
Based on these results, Mr Kahler calculated the claimant’s actual post-accident average weekly earnings as follows:
Source
Ref
07/12/23 to 31/03/24
01/04/24 to 30/06/24
01/07/24 to 24/08/24
Operating profit / (loss)
Sch C
a
35,107
(19,924)
766
Add back:
- reported depreciationSch C
b
-
16,030
-
Deduct:
- notional depreciationc = g x e
(6,182)
(4,850)
(2,933)
True net profit / (loss) before tax
d
28,925
(8,744)
(2,167)
Number of weeks in period
e
16.57
13
7.86
Average weekly earnings / (loss) for period
f = d / e
1,745.61
(672.65)
(275.64)
Notional depreciation per week
$19,401/52
g
373.10
373.10
373.10
In preparing the above table, Mr Kahler notes the following:
a. He has used the same approach to assess the claimant’s post-accident earnings as was used to assess the claimant’s PAWE (i.e. start with the reported operating profit of the business and make appropriate depreciation adjustments where necessary).
b. The notional depreciation amount calculated for each period is based on Furzer Crestani’s assessment of annual notional depreciation (i.e. $19,401) converted a weekly amount (i.e. $373.10 per week).
c. The claimant’s reported expenses for the three months ended 30 June 2024 included a reported depreciation expense of $16,030. The list of assets supplied by the claimant indicates that this amount was in fact an instant asset write-off pursuant to the acquisition of a Rabaud Wood Cleaner for $16,030 on 01 May 2024. Accordingly, Mr Kahler added this amount back to the reported trading loss for three months ended 30 June 2024. He notes that Furzer Crestani made a similar adjustment in their assessment of the claimant’s post-accident earnings (see Schedule E of the Furzer Crestani report).
In Mr Kahler’s opinion, the claimant’s actual post-accident earnings during the period 7 December 2023 to 24 August 2024 were:[6]
a. An average of $1,745.61 per week during the period 7 December 2023 to 31 March 2024, and
b. Losses for the period 1 April 2024 to 24 August 2024.
[6] It is noted that Mr Kahler does not provide an opinion as to the claimant’s actual post-accident earnings for the period 30 November 2023 to 6 December 2023 (inclusive).
Mr Kahler notes that Furzer Crestani determined a total net trading loss of $26,609 for the period from 26 August 2023 to 30 June 2024. Mr Kahler notes this is calculated based on their assessment of the claimant’s true profit for the year end 30 June 2024 (a loss of $11,031) and the claimant’s “true profit” for the pre-accident period from 1 July 2023 to 25 August 2023 (a profit of $15,578), rather than relying on the relevant periodic post-accident profit and loss statements.
Using the post-accident profit and loss statements supplied by the claimant and making appropriate adjustments for depreciation, Mr Kahler estimates the claimant’s earnings during the post-accident period from 26 August 2023 to 30 June 2024 as follows:
26/08/23 to 30/09/23
01/10/23 to 31/12/23
01/01/24 to 30/06/24
01/04/24 to 30/06/24
26/08/23 to 30/06/24
Operating profit / (loss)
Sch D
a
(8,313)
(20,641)
25,623
(19,924)
(23,255)
Add back:
- reported depreciationSch D
b
-
-
-
16,030
16,030
Deduct:
- notional depreciationc = e x f
(1,919)
(4,904)
(4,850)
(4,850)
(16,523)
True net profit / (loss) before tax
d = a + b - c
(10,232)
(25,544)
20,773
(8,744)
(23,748)
Number of weeks in period
e
5.14
13.14
13
13
Notional depreciation per week
$19,401/52
f
373.10
373.10
373.10
373.10
Schedule D – summary of profit and loss statements (cash) for period 26 August 2023 to 30 June 2024:
Period
Total income ($)
Total cost of sales ($)
Gross profit ($)
Total expense ($)
Operating Profit ($)
Total Other Income ($)
Total Other Expenses ($)
Net Profit / (Loss) ($)
26/08/23 to 30/06/24
134,643
92,082
42,560
65,815
(23,255)
30,363
7,108
Based on the above, Mr Kahler assessed a net loss of $23,748 for the period 26 August 2023 to 30 June 2024. He noted that this is not materially different to Furzer Crestani’s assessment of a loss of $26,609.
A significant proportion of the claimant’s overall trading loss for the period were due to losses in the first entitlement period (being 25 August 2023 to 25 November 2023), noting the losses incurred for the period from 26 August 2023 to 30 September 2023 ($10,232) and the period 1 October 2023 to 31 December 2023 ($25,544).
In respect of the period 30 November 2023 to 31 March 2024, Mr Kahler applied a statutory benefit percentage of 85% as he assessed a partial loss of earnings. That is, $2,340.85 minus earnings of $1,745.61 x 85% = $505.95 x 17.57 = $8,890.
In respect of the period 1 April 2024 to 24 August 2024, Mr Kahler referred to the relevant wording of the MAI Act where it states that statutory benefits payable during the second entitlement period are the difference between the person’s pre-accident earning capacity (if any) or post-accident earnings, whichever is the greater. Mr Kahler assumed post-accident weekly earnings of nil for this period, noting that while the claimant incurred losses, his post-accident earning capacity cannot be less than zero. As this was a total loss of earnings, a benefit of 80% was applied, being $2,340.85 x 80% x 20.86 = $39,064.
Noting this totalled $47,954 ($8,890 + $39,064) and deducting Mr Schutz’s payments received to date of $15,940, Mr Kahler calculated an underpayment of $32,014.
Mr Kahler notes that he disagrees with Furzer Crestani’s opinion that the claimant’s post-accident earnings for the entire post-accident period are nil, based on the claimant’s overall trading loss of $26,909 from the date of the accident to 30 June 2024. The MAI Act specifically states that the second entitlement period only considers the difference in earnings after the first entitlement period. Furzer Crestani’s approach takes into account the significant trading losses incurred by the claimant in the first entitlement period. Mr Kahler’s methodology is based on the claimant’s earnings after the first entitlement period.
Further, Mr Kahler opines that, where a self-employed claimant has produced periodic post-accident trading results, it is appropriate to calculate the claimant’s post-accident earnings for relevant distinct periods, noting the likely changes in post-accident earnings as a claimant’s capacity for works changes from time to time.
By adopting post-accident earnings for the entire post-accident period based on an assessment that includes the claimant’s trading losses for the first entitlement period, Mr Kahler opines that Furzer Crestani’s calculations are not in accordance with the MAI Act and overstate the amount of the underpayment.
Mr Kahler submits that his approach, which relies solely on the claimant’s trading results during the relevant post-accident periods, should be preferred.
CONSIDERATION
What is agreed?
Since the commencement of this matter in the Commission, the parties have significantly narrowed the issues in dispute. It is agreed as between the parties that:
a. Mr Schutz is an earner for the purposes of the MAI Act;
b. his PAWE is $2,340.85;
c. Mr Schutz is entitled to statutory benefits for up to 52 weeks post-accident. Any entitlements beyond this period is not in issue before me;
d. as Mr Schutz lodged his claim for statutory benefits more than three months after the date of the motor accident to which the claim relates, weekly payments of statutory benefits are not payable in respect of any period before his claim was made.[7] Accordingly, Mr Schutz’s relevant entitlement period is 30 November 2023 to 24 August 2024;[8]
e. Mr Schutz’s entitlement falls solely within s 3.7 of the MAI Act, being the “second entitlement period”;
f. there has been no determination of Mr Schutz’s post-accident earning capacity, and the insurer concedes that Mr Schutz’s post-accident earning capacity is determined by his post-accident earnings;
g. Mr Schutz’s business incurred losses for the period 1 April 2024 to 24 August 2024 and therefore his post-accident earnings for this period are nil. As such, Mr Schutz’s weekly payments of statutory benefits for 1 April 2024 to 24 August 2024 are $2,340.85 x 80%, and
h. Mr Schutz has been paid $15,939.96 in weekly payments of statutory benefits to date.
[7] Per s 6.13 of the MAI Act and regulation 8A of the Regulations.
[8] It is noted that some of the insurer’s documents reference the commencement date as 7 December 2023. At the preliminary conference on 10 March 2025, the parties confirmed the relevant period to be 30 November 2023 to 24 August 2024. This was also confirmed by the parties in their subsequent submissions.
What remains in dispute is how Mr Schutz’s post-accident earnings for the period 30 November 2023 to 31 March 2024 should be calculated.
How should Mr Schutz’s post-accident earnings for 30 November 2023 to 31 March 2024 be calculated?
In sum, the insurer contends that s 3.7 of the MAI Act requires weekly payments of statutory benefits to be calculated by reference to any post-accident earnings after the first entitlement period. Mr Schutz submits that this would be unfair based on the nature of how his business is structured, and that the calculation should instead be based on his post-accident earnings for the entire post-accident period.
The resolution of this issue turns on how s 3.7 of the MAI Act should be construed. Neither party has directed me to cases where this point has been considered.
The principles of statutory interpretation are well established. In AB (a pseudonym v Another v Independent Broad-Based Anti-Corruption Commission (2024) 278 CLR 300; [2024] HCA 10, their Honours Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ noted:
“[21] The interpretation of [the section of the act] must ‘begin with a consideration of the text itself’, that is, the text of the statute as a whole. That said, ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy (citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 260 ALR 1; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ. See also SAS Trustee Corporation v Miles (2018) 265 CLR 137 361 ALR 206; [2018] HCA 55 at [20] per Kiefel CJ, Bell and Nettle JJ, at [41] per Gageler J, at [64] per Edelman J), Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304; 35 ALR 151 at 156 per Gibbs CJ, at CLR 320; ALR 169 per Mason and Wilson JJ, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; 141 ALR 618 at 634–5 per Brennan CJ, Dawson, Toohey and Gummow JJ)”
Examining the text of the MAI Act, it is clear that sections 3.6, 3.7 and 3.8 provide for three separate entitlement periods. All three entitlement periods provide for different and specific methods of calculating a claimant’s entitlement to weekly payments.
In respect of the first entitlement period, prescribed as the “first 13 weeks after motor accident”, payment 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) or post-accident earnings, whichever is the greater, for the first entitlement period.[9]
[9] Section 3.6(2) of the MAI Act.
In respect of the second entitlement period, prescribed as “weeks 14-78 after motor accident”, payment is to be at the rate of either 80% in the case of a total loss of earnings, or 85% in the case of a partial loss of earnings, of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the first entitlement period.[10]
[10] Section 3.7(2) of the MAI Act.
In respect of the third entitlement period, prescribed as the period “after week 78”, payment is to be at the rate of either 80% in the case of a total loss of earning capacity, or 85% in the case of a partial loss of earning capacity, of the difference between the person’s pre-accident earning capacity and the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the second entitlement period.
What is clear from the text of the legislation is that, in respect of the first and second entitlement periods, a claimant’s entitlement is calculated based on the difference between their PAWE and their post-accident earning capacity (if any) or post-accident earnings. However, a claimant’s entitlement in the third entitlement period is calculated based on their person’s pre-accident earning capacity, rather than their PAWE.
Additionally, the wording of s 3.7 is very specific. It provides for weekly payments in the second entitlement period to be calculated based on the difference between the person’s PAWE and post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the first entitlement period (my emphasis). There is nothing that allows a discretion to base the calculation of these payments on a broader period.
The other periods of entitlement have similar prescriptions and require payments to be calculated based on the person’s earnings or earning capacity during the specified period in which the payment is for.
Section 3.23 provides that weekly payments are to be paid fortnightly, unless otherwise provided by the Guidelines or agreed between the parties. Section 3.15 provides that a claimant’s fitness for work is to be evidenced by providing an insurer with certificates of fitness in respect of the period of which they are entitled to weekly payments of statutory benefits. The certificate must, inter alia, certify the person’s fitness for work not exceeding 28 days, unless one of the specified exceptions applies.
Section 3.19(5) provides that the notice requirements do not apply to a reduction in weekly payments of statutory benefits as a result of any change in an injured person’s earnings from any employment.
These sections support the above interpretation of s 3.7 and indicate that weekly benefits in the second entitlement period should be calculated on a sufficiently regular basis to ensure they reflect the claimant’s current earnings and/or earning capacity. There is nothing that suggests the entitlement should be calculated by reference to a financial year or a full year. I find that approach would be contrary to not only the text of s 3.7 but also the text of the MAI Act as a whole.
As noted by Justice Adamson in Allianz Australia Insurance v Jenkins [2020] NSWSC 412, “[i]n construing the Act, it is important to recall that the purpose of the provisions referred to above is to provide compensation, albeit partial, for economic loss”.[11]
[11] At [31].
Considered in its context, and examining the purposes of the MAI Act, I can see no basis to construe the text of the legislation in any other manner.
I find no basis for the claimant’s submission that weekly benefits in respect of the second entitlement period should be calculated based on a claimant’s earnings for a full financial year. This claimant’s submission was not based upon the legislative text, context or purpose, but rather on the basis of “unfairness” to Mr Schutz.
I accept that a calculation of Mr Schutz’s weekly payments in the second entitlement period by reference to only his earnings after the first entitlement period may result in a calculation that he considers to be “unfair” based on his particular circumstances. However, as noted above, I find there is no basis for construing s 3.7 of the MAI Act to calculate his weekly payments in the second entitlement period on the basis of his full financial year earnings. I also find there is no discretion provided to enable me to amend the relevant period in which his earnings are to be calculated on this basis.
If Mr Schutz had complied with the relevant statutory timeframes in the MAI Act, any losses in the first entitlement period would have been considered in respect of the calculation of his weekly payments of statutory benefits in the first entitlement period.
Accordingly, I find that Mr Kahler’s approach to the calculation of Mr Schutz’s earnings during the second entitlement period to be correct. There is no basis in the legislation for the approach contended by Mr Katehos, being to examine the full financial year in circumstances where that includes the first entitlement period.
I also find Mr Kahler of Vincents has not “cherry picked” certain periods in order to calculate Mr Schutz’s earnings. Rather, Mr Kahler’s approach is based on the specific legislative requirement for weekly payments during the second entitlement period to be calculated by reference to earnings or earning capacity during that period.
For completeness, I accept that there may be timing issues with the recording of expenses and sales, as submitted by the claimant and Mr Katehos. However, as noted above, I am prevented from taking into account a broader period for the purpose of calculating Mr Schutz’s entitlement to weekly payments during the second entitlement period. Mr Katehos’s suggested approach is not permitted under the MAI Act.
What are Mr Schutz’s post-accident earnings?
Based on my interpretation of the relevant sections of the MAI Act, I have found that Mr Schutz’s weekly payments for 30 November 2023 to 24 August 2024 are to be calculated based on the difference between his PAWE and his post-accident earnings after the first entitlement period.
As noted above, loss of earnings is defined in Sch 1 cl 3 of the MAI Act. This requires the loss to be incurred or likely to be incurred in a person’s income from personal exertion. A person’s income from personal exertion includes the proceeds of any business carried on by the person either alone or in partnership with any other person.[12] Accordingly, I agree with the claimant’s submission that his earnings should be calculated pursuant to subclause (2)(b).
[12] Sch 1 cl 3(2)(b) of the MAI Act.
I note that the claimant relies on the interpretation of this section as set out in Insurance Australia Limited t/as NRMA Insurance v Iskander [2024] NSWPICMRP 5 at [106], which states that income from personal exertion, under the MAI Act, refers to the claimant’s share of the proceeds of the business. I agree with this interpretation, however note that there is no allegation in the current matter that any of the proceeds of the claimant’s business are not the earnings of the claimant as an earner.
There is no evidence before me as to the structure of Mr Schutz’s business. Both parties appear to have approached the calculation of Mr Schutz’s earnings on the basis that these are the earnings of his business. Accordingly, in the absence of any submissions on this point and based on the evidence before me, I have approached my calculation of Mr Schutz’s earnings on this same basis.
As the claimant is a self-employed small business owner, he does not draw a weekly or fortnightly wage. Based on the evidence before me, I find it is appropriate to base the calculation of Mr Schutz’s post-accident earnings on his business’s post-accident profit and loss statements.
Mr Schutz’s profit and loss statements are provided for various periods of differing intervals. I have examined these statements and they are extracted at paragraph 53 above. Relevantly, they are for the following periods:
a. October 2023 to December 2023;
b. 26 August 2023 to 31 March 2024;
c. July 2023 to March 2024;
d. 7 December 2023 to 31 March 2024;
e. January 2024 to March 2024;
f. April 2024 to June 2024, and
g. 1 July 2024 to 24 August 2024.
There are profit and loss statements which precisely cover the period 7 December 2023 to 24 August 2024. This period represents the claimant’s trading results for all but the first week of the relevant post-accident period.
In examining these statements, I have found the reports prepared by both Mr Katehos and Mr Kahler to be of assistance. For the reasons set out above, I accept Mr Kahler’s approach to be aligned with the requirements of the legislation.
Mr Kahler opines that it is appropriate to assess Mr Schutz’s post-accident earnings by starting with the reported operating profit of the business. I find that it is appropriate to adopt Mr Kahler’s approach of using the “reported operating profit” rather than relying on the reported “net profit / loss” in the business profit and loss statements. This is because I find the “other income” listed, such as fuel tax credits, flood recovery grants and insurance reimbursements, do not constitute a “loss of earnings” as they are not income from personal exertion. I find these payments do not fall within any of the categories in Sch 1 sub-cl 3(2) of the MAI Act.
Further, I note that Mr Kahler’s calculations make notional depreciation adjustments. Mr Kahler states that the amount for each period was based on that assessed by Mr Katehos ($19,401), converted to a weekly amount ($373.10). In the circumstances where the experts are aligned on this point, I accept this calculation of notional depreciation and find it appropriate to apply notional deductions in calculating Mr Schutz’s post-accident earnings.
Mr Katehos is critical of Mr Kahler for not amortising expenses such as public liability insurance costs over the full year. In this regard, I note public liability insurance costs of $1,547.41 have been captured for the purposes of determining Mr Schutz’s earnings in the period April 2024 to June 2024. I find this appropriate. There is no evidence before me as to the period in which these costs were incurred.
Accordingly, I find that Mr Schutz’s weekly payments of statutory benefits for the period 7 December 2023 to 24 August 2024 should be calculated based on Mr Schutz’s reported operating profit for this period, minus notional depreciation.
Period 30 November 2023 to 6 December 2023
I accept Mr Katehos’s criticism of Vincents’ report that there is no attempt to assess the claimant’s post-accident earnings for the period 30 November 2023 to 6 December 2023.
I note that the documents provided by both parties do not enable me to make a precise determination of Mr Schutz’s post-accident earnings for this period. I find that the most appropriate method to calculate the claimant’s earnings for the period 30 November 2023 to 6 December 2023 is to examine the claimant’s profit and loss statement for the period October 2023 to December 2023, and to take a pro-rata of this period.
The profit and loss statement for the period October 2023 to December 2023 refers to the operating profit being a loss of $20,640.64. Accordingly, I find that Mr Schutz’s income for this period was $nil.
I find Mr Schutz had a total loss of earnings for the period 30 November 2023 to 6 December 2023 (inclusive) and the rate of 80% is to be applied.[13]
[13] Section 3.7(2)(a) MAI Act.
Accordingly, Mr Schutz was entitled to a weekly payment of statutory benefits for the period 30 November 2023 to 6 December 2023 of $2,340.85 (PAWE) x 80% (applicable rate) = $1,872.68.
Period 7 December 2023 to 31 March 2024
In respect of the period 7 December 2023 to 31 March 2024, I find that Mr Schutz’s post-accident earnings were $35,107 (based on his reported operating profit), minus notional depreciation of $6,182 ($373.10 x 16.57 weeks), resulting in a total net profit of $28,925 for the period. This equates to an average weekly earning of $1,745.62.
As this reflects a partial loss of earnings, the rate of 85% is to be applied in accordance with s 3.7(2)(b).
Accordingly, Mr Schutz is entitled to weekly payments of statutory benefits in the period 7 December 2023 to 31 March 2024 in the amount of $2,340.85 (PAWE) - $1,745.62 (average weekly earnings) x 85% (applicable rate) = $505.95.
Period 1 April 2024 to 24 August 2024
As noted above, the parties agree that the profit and loss statements demonstrate that Mr Schutz incurred losses for the period 1 April 2024 to 24 August 2024 inclusive. I find this is correct based on the documentation before me.
Accordingly, the rate of 80% is to be applied as this is a total loss of earnings.[14]
[14] Section 3.7(2)(a) of the MAI Act.
Mr Schutz is entitled to weekly payments of statutory benefits in the period 1 April 2024 to 24 August 2024 in the amount of $2,340.85 (PAWE) x 80% (applicable rate) = $1,872.68.
COSTS
Part 8 of the MAI Act regards costs and fees.
Section 8.3 of the MAI Act provides for the fixing of maximum costs recoverable by Australian legal practitioners, and relevantly provides:
“…
(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.”
…”
Section 8.10(1) provides:
“(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.”
The entitlement in s 8.10(1) is qualified by sub-sections (2) to (4). These sub-sections provide:
“(2) The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission:
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that—
…
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.”
Division 2 of the Motor Accident Injuries Regulation 2017 (Regulations) pertains to maximum legal and other costs.
As this matter is not a regulated merit review matter under Sch 1 Part 1 cl 1 of the Regulations, nor is the claimant under a legal incapacity, legal costs are only recoverable from the insurer if the Commission is satisfied that exceptional circumstances exist that justify such payment: s 8.10(4)(b).
Section 7.13A of the MAI Act allows a merit reviewer to include in the certificate an assessment of the claimant’s costs. In making the assessment, s 7.13A(3) provides that the merit reviewer must give effect to the requirements of the Regulations under Part 8 of the MAI Act and have regard to the principles referred to in s 200 of the Legal Profession Uniform Law (NSW).
While I have determined the substance of this matter in my capacity as a merit reviewer pursuant to Sch 2 cl (1)(a) of the MAI Act, and I am able to assess costs in that capacity, a determination of exceptional circumstances must be made by the Commission. Merit reviewers do not constitute the “Commission”.[15] However, noting that I am also appointed as a Member of the Commission, I consider it is consistent with both the objects of the PIC Act and the guiding principle for me to determine the question of exceptional circumstances in this matter in my capacity as a Member, rather than require the parties to file a separate application.[16]
[15] See ss 8, 31 to 34 of Personal Injury Commission Act 2020.
[16] See the commentary in Allianz Australia Insurance Ltd v Rymer [2022] NSWPICMRP 6.
“Exceptional circumstances” is accepted to mean circumstances that are unusual or out of the ordinary, determined based on the facts of the individual case.[17] The case does not need to be one that is unique, unprecedented, or very rare.[18]
[17] San v Rumble (No 2) [2007] NSWCA 259 at [67].
[18] San v Rumble (No 2) [2007] NSWCA 259 at [67].
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.[19]
[19] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
Further, whether costs are reasonable and necessary is a matter that depends on the particular circumstances of each case.[20]
[20] AAI Ltd trading as GIO v Moon [2020] NSWSC 714 (Moon).
Mr Schutz submits that exceptional circumstances exist and that he should be entitled to recover his reasonable and necessary legal costs incurred in connection with this matter up to the regulated maximum, being 16 monetary units. Mr Schutz points to the requirement to obtain forensic accounting reports to indicate the complexity associated with this matter. He says that the insurer’s review outcomes varied substantially, as did the analysis of the financial records of his business. He further says that detailed submissions were required to successfully explain and narrow the issues in dispute, in order to bring the matter to a point where the Commission was able to determine the matter.
Mr Schutz also seeks an order that the insurer pay the outstanding costs of the Furzer Crestaini initial report in the amount of $2,662 and the supplementary report in the amount of $2,640.00. The claimant submits that accountant fees are not regulated per regulation 20(b) of the Regulations, and that these costs are reasonable and necessary given the reliance placed on both reports.
The insurer notes that it is a matter for the Commission as to whether it is satisfied that exceptional circumstances exist such as to justify payment of legal costs incurred by the claimant in accordance with s 8.10(4) of the MAI Act. In the event that the Commission is satisfied that exceptional circumstances exist, the insurer agrees that the amount claimed by Mr Schutz, being 16 monetary units and the costs of the Furzer Crestani reports, is reasonable and necessary.
While this matter did not require an assessment conference, it involved complex forensic accounting evidence necessitating several reports by forensic accounting experts qualified by both the insurer and claimant. Over the course of the proceedings, the parties made several concessions which significantly narrowed the issues in dispute. This is reflective of the complexity of the issues involved in this matter and the parties should be complimented on their conduct throughout the proceedings.
The substantial work undertaken by the claimant’s legal representatives was apparent in their detailed submissions.
In addition to the complexity of facts, this matter also involved areas of statutory interpretation. It is this combination which I consider makes it a matter out of the ordinary.
Accordingly, I find that exceptional circumstances exist such as to permit the claimant to recover his legal costs up to the amount proposed, being 16 monetary units. I find that it is also appropriate to allow the costs of the Furzer Crestani reports, being in the amounts of $2,420 plus GST and $2,400 plus GST. The claimant has provided invoices in support and I am satisfied that these costs have been incurred for the purposes of the MAI Act.[21] I also accept these invoices are fees for accountant reports and are not costs regulated by Part 6 of the Regulations.[22]
[21] I refer to the discussion in Moon as to the meaning of incurred.
[22] Reg 20(b) of the Regulations.
Pursuant to s 8.10(4)(b) of the MAI Act, the Commission permits payment of legal costs incurred by the claimant in connection with this matter. Pursuant to s 7.13A of the MAI Act, the claimant’s reasonable and necessary costs are assessed in the amount of 16 monetary units.
The costs of the reports of Furzer Crestani in the amounts of $2,420 plus GST and $2,400 plus GST are reasonable and necessary.
CONCLUSION
The reviewable decision is set aside.
In substitution, I find that the claimant’s entitlement to weekly benefits for the period 30 November 2023 to 24 August 2024 should be calculated on the following basis:
a. the claimant’s pre-accident weekly earnings are $2,340.85, and
b. the claimant’s post-accident earnings are:
i.for the period 30 November 2023 to 6 December 2023 (inclusive): $nil, being a total loss of earnings for the purposes of s 3.7(2)(a);
ii.for the period 7 December 2023 to 31 March 2024 (inclusive): $1,745.62, being a partial loss of earnings for the purposes of s 3.7(2)(b), and
iii.for the period 1 April 2024 to 24 August 2024 (inclusive): $nil, being a total loss of earnings for the purposes of s 3.7(2)(a).
The insurer is to pay the claimant’s legal costs in the amount of 16 monetary units and disbursements in the amount of $4,820 plus GST.
0
12
0