Suman v Allianz Australia Insurance Limited
[2023] NSWPICMR 52
•17 October 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Suman v Allianz Australia Insurance Limited [2023] NSWPICMR 52 |
| CLAIMANT: | Suman Suman |
| INSURER: | Allianz |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 17 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of weekly benefits under division 3.3; meaning of pre-accident weekly earnings (PAWE); meaning of earnings; schedule 1, clause 3(1), clause 3(2), clause 4(1); whether expected post-accident earnings or other anticipated earnings or employment benefits can be included in PAWE; whether PAWE can be adjusted to account for cost of living, impact of the accident, emotional distress; earnings received as an earner in the 12 months before the day of the motor accident; Held – the reviewable decision is set aside. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION 1. The reviewable decision is set aside. 2. The claimant’s pre-accident weekly earnings (PAWE) amount is $1,097.77. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Suman Suman (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 8 July 2023.
The claimant made an Application for Personal Injury Benefits under the MAI Act.
On 25 August 2023 the insurer determined the claimant’s pre-accident weekly earnings (PAWE) in the sum of $1,117.53.
The claimant requested an internal review of the insurer’s 25 August 2023 decision.
On 14 September 2023 the insurer varied their previous PAWE decision by determining the claimant’s PAWE in the sum of $1,117.92.
The claimant has made an application for a merit review of the insurer’s 14 September 2023 internal review decision (the Application).
SUBMISSIONS
In her application for an internal review of the insurer’s PAWE decision the claimant contended her PAWE should be revised to a higher sum by reason of her post accident circumstances, namely:
(a) “the impacts that accident has left [her] with”;
(b) her “ongoing struggle every single day”, and
(c) “pay rates (penalty rates, sick leaves, annual leaves, superannuation and payment increment) and the second job that [she] was going to do to increase [her] income” after the accident.
The claimant submitted she “should be getting paid at least over $3,000 per week as a compensation for all the struggle [she is] going through”. In her application for a merit review the claimant also submits her PAWE amount should be re-calculated to “at least over $3,000” per week. In addition to the issues raised in her application for an internal review the claimant further submits in her merit review application:
(a) her PAWE should include an allowance for earnings she would have received for work she expected to carry out the day after the accident, on 9 July 2023 on the basis she had been rostered to work that day;
(b) she considers the insurer “must cover all of [her] bills until [she] fully recover[s]”, and
(c) she seeks compensation for “the emotional and mental stress [the insurer has] put [her] under” in connection with the claim.
The insurer essentially submits the issues raised by the claimant are irrelevant to calculation of her PAWE and PAWE can only include those earnings received by the claimant in the 12 month pre-accident period, as evidenced by the claimant’s payslips.
JURISDICTION
In so far as the claimant contends the insurer “must cover all of [her] bills” to the extent the claimant seeks payment of any invoice payable under the MAI Act for the cost of treatment and care there is no evidence this issue has been the subject of a request for an internal review by the claimant. Pursuant to s 7.11 of the MAI Act the claimant is not entitled to a merit review unless she has made an application for an internal review and the internal review has taken place or the insurer has refused or failed to conduct an internal review within the required time after the claimant’s request. As this has not occurred, I do not have jurisdiction to conduct a merit review about payment of costs of treatment and care under the MAI Act.
To the extent the contention the insurer must cover all bills relates to the cost of day to day living such as grocery and utility bills there is no provision in the MAI Act that requires the insurer to pay such bills, or to provide weekly benefits in an amount that would cover all such bills. It follows that there is no jurisdiction to conduct a merit review.
To the extent the contention the insurer must cover all bills relates to the basis upon which the claimant’s PAWE should be calculated there is jurisdiction to consider this issue as part of a merit review of a dispute about the amount of the claimant’s PAWE. Accordingly, this issue will be addressed in the reasons below.
To the extent the claimant seeks compensation for “emotional and mental stress” by reason of the insurer’s alleged conduct in the handling of her claim there is no provision under the MAI Act for compensation to be paid on this basis. Accordingly, there is no jurisdiction to consider this issue in a merit review.
Lastly, the claimant has provided travel expense reimbursement forms as part of her documents. However, there is no indication that reimbursement of travel expenses has been the subject of any application for an internal review. Accordingly, as per paragraph 11 above, under s 7.11 of the MAI Act the claimant is not entitled to request a merit review of any dispute over reimbursement of travel expenses without first making an application for an internal review. Accordingly, I do not have jurisdiction to conduct a merit review about travel expenses.
REASONS
Issues
There is no dispute that the claimant is an earner within the meaning of the MAI Act. There also does not appear to be any dispute that the claimant’s PAWE falls under Schedule 1, cl 4(1) of the MAI Act. For completeness, however, I note cl 4(1) applies unless one of the exceptions to cl 4(1) in cl 4(2) applies. There is no evidence to suggest any of the exceptions in cl 4(2) apply to the claimant’s circumstances. Accordingly, the claimant’s PAWE falls under cl 4(1).
The issue for determination is therefore the amount of gross earnings received by the claimant in the 12 months immediately before the day of the motor accident and in turn, what is the claimant’s PAWE amount under cl 4(1), including:
(a) whether expected earnings for work that would have been carried out on the day after the motor accident (namely 9 July 2023) can be included in PAWE;
(b) whether PAWE can be adjusted to an amount that covers all of the claimant’s bills/living expenses;
(c) whether PAWE can be adjusted to allow for the impacts of the accident on the claimant and her day to day struggle post-accident;
(d) whether PAWE can be adjusted to allow for the loss of an ability to earn more by working overtime at penalty rates, expected pay increases and/or loss of superannuation, sick leave and annual leave entitlements the claimant would have had the benefit of, if she had continued working, and
(e) whether PAWE can be adjusted to allow for earnings the claimant may have received in future based on an intention to obtain a second job.
The legislation
Pursuant to Schedule 1, cl 4 of the MAI Act PAWE means:
“(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 the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred,
(c) if the earner is an earner by reason of having entered into an arrangement with an employer or other person to undertake employment or to commence business as a self-employed person--the average weekly gross earnings that the earner could reasonably have been expected to earn, but for the injury, in employment under that arrangement.
(2A) The ‘pre-accident period’, in relation to a motor accident, is the period of 2 years immediately preceding the motor accident.
(3) This subclause applies if, during the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred.
…
(4) For the purposes of this clause, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the day of the motor accident, was likely to continue for a period of at least 6 months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were being provided as at that day.”
As noted above, there is no evidence to suggest any of the exceptions in cl 4(2) apply to the claimant. The evidence establishes the claimant was consistently working as a supervisor for Harris Farm Market during the 12 month period before the accident. Accordingly, the claimant’s PAWE is to be calculated under Schedule 1, cl 4(1).
What is the claimant’s PAWE under cl 4(1)?
Under Schedule 1, cl 4(1) the claimant’s PAWE is the weekly average of the gross earnings received as an earner in the 12 month period before the day of the motor accident.
The motor accident occurred on 8 July 2023. The day before the motor accident is 7 July 2023. Accordingly, under cl 4(1) the 12 month pre-accident period is 8 July 2022 to 7 July 2023.
Clause 4(1) provides that the claimant’s PAWE is “the weekly average of the gross earnings received by” the claimant in this 12 month period. Accordingly, only earnings received by the claimant in the period 8 July 2022 to 7 July 2023 are included in PAWE (emphasis added). Earnings received before or after this period are excluded, including earnings received after 7 July 2023 even if the earnings received after 7 July 2023 represent work carried out on or before 7 July 2023.
What earnings did the claimant receive in the period 8 July 2022 to 7July 2023?
The evidence establishes that during the period 8 July 2023 to 11 July 2023 (a date after the end of the 12 month period under cl 4(1)) the claimant received gross earnings through employment with Harris Farm Market totalling $58,131.81 as set out in the table on pages 4 and 5 of the insurer’s submissions (I have reconciled the insurer’s table with the source documents and find it to be correct). However, the last amount in that table in the sum of $1,048.03 was paid to, and received by, the claimant on 11 July 2023 which is a date after the day of the motor accident and after the 12 month pre-accident period under cl 4(1) ended on 7 July 2023. As clause 4(1) allows only those earnings actually “received” by the claimant in the 12 months before the accident, the earnings received by the claimant in the sum of $1,048.03 on 11 July 2023 are excluded from PAWE. Accordingly, the gross earnings received by the claimant in the 12 months before the accident total $57,083.78 being $58,131.81 received in the period 8 July 2022 to 11 July 2023 (as per the payslips) less $1,048.03 received after the accident on 11 July 2023.
Anticipated earnings from work arranged on 9 July 2023
As set out above, cl 4(1) only allows earnings “received” by the claimant during the 12 months “before” the accident to be included in calculation of PAWE.
Accordingly, any earnings the claimant anticipated she would have received for work carried out after the accident is excluded from PAWE.
Can PAWE be adjusted to accommodate all of the claimant’s daily living bills?
It is unclear how or why the claimant requires “at least” $3,000 to cover her costs of living post-accident in circumstances where the claimant was earning significantly less before the accident.
In any event, there is nothing in cl 4(1) or elsewhere in the MAI Act that allows for PAWE (or the amount of weekly benefits payable under Division 3.3) to be adjusted to ensure a figure that accommodates all of an injured person’s bills. The wording of cl 4(1) is clear in that PAWE must be calculated on, and only on, the amount of gross earnings received by the earner as an earner in the 12 months before the day of the motor accident. Costs of living are not a relevant consideration under cl 4(1).
Can PAWE be adjusted to make allowance for the impacts of the accident on the claimant?
As stated above, cl 4(1) restricts calculation of PAWE to a calculation of the weekly average of the gross earnings received by the claimant as an earner in the 12 months before the day of the accident. There is no provision in the MAI Act for any adjustment to reflect the impact of the accident or other circumstances of a particular claimant.
Can PAWE be adjusted to allow for a loss of expected future earnings such as overtime penalty rates, superannuation, sick leave, annual leave or pay increases or from anticipated secondary employment?
Again, cl 4(1) is limited to calculation of PAWE based on earnings received before the accident. There is no provision in cl 4(1) for future contingencies such as pay increases or undertaking additional overtime. Nor does the wording of cl 4(1) allow the inclusion of future expected superannuation payments, the value of future expected sick or annual leave entitlements or earnings that might have been received from secondary employment.
In any event, superannuation, sick leave or annual leave are not earnings for the purpose of the MAI Act, including cl 4(1). This is because in Schedule 1, cl 3(1) of the MAI Act "loss of earnings" means “a loss incurred or likely to be incurred in a person's income from personal exertion”. It follows from this (and where “earnings” is otherwise not defined in the MAI Act) that wherever the word “earnings” appears in the MAI Act, including in cl 4(1), it means income from personal exertion. Pursuant to cl 3(3)(c) “income from personal exertion” that is, earnings, expressly excludes superannuation. Pursuant to cl 3(3)(d) income from personal exertion that is, earnings, expressly excludes “the monetary amount of any annual, sick or other leave entitlement”. Accordingly, earnings for the purpose of calculating PAWE under cl 4(1) does not include superannuation or the monetary amount of annual, sick or other leave entitlements.
Accordingly, there is no provision under cl 4(1) or elsewhere in the MAI Act to adjust PAWE to allow for expected future employment benefits or earnings whether that be superannuation, leave entitlements, pay increases or from secondary employment. None of this amounts to earnings “received by” the claimant “before” the accident.
Calculation of PAWE
It follows from the above reasons that the claimant’s PAWE is the weekly average of the gross earnings received by the claimant from Harris Farm Market during the 12 month period commencing on 8 July 2022 and ending on 7 July 2023. This necessarily excludes the earnings received by the claimant on 11 July 2023 in the sum of $1,048.03 as this falls outside the 12 month pre-accident period under cl 4(1).
The evidence establishes total gross earnings received by the claimant in the period 8 July 2022 to 7 July 2023 were $57,083.78 as evidenced by the payslips showing the payments to the claimant in this period (excluding payment received on 11 July 2023 even though that amount represented work performed before the accident). The period 8 July 2022 to 7 July 2023 comprises 52 weeks. Accordingly, the claimant’s PAWE is $1,097.77 ($57,083.78 divided by 52 weeks).
CONCLUSION
For the reasons set out above:
(a) the claimant’s PAWE calculation falls under Schedule 1, cl 4(1);
(b) expected earnings for work that would have been carried out after the accident on 9 July 2023 is excluded from PAWE as is expected future employment benefits or other earnings and any expected income from secondary employment which may have been undertaken;
(c) PAWE cannot be adjusted to accommodate the claimant’s bills/cost of living, the impact of the accident on the claimant or any hardship being experienced by the claimant;
(d) gross earnings received by the claimant for the purpose of PAWE under cl 4(1) is $57,083.78, and
(e) the claimant’s PAWE is therefore $1,097.77.
The reviewable decision is therefore:
(a) set aside, and
(b) the amount of the claimant’s PAWE is $1,097.77.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· The Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.
0
0
0