Tissaoui v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Tissaoui v QBE Insurance (Australia) Limited [2022] NSWPICMR 38
CLAIMANT:	Houssine Tissaoui
INSURER:	QBE Insurance (Australia) Limited
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	1 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); pre-accident weekly earnings (PAWE); meaning of PAWE; schedule 1, clause 4(1) of the 2017 Act; whether COVID-19 disaster payments are earnings as an earner; meaning of loss of earnings, schedule 1, clause 3 of the 2017 Act; whether travel claim payments are earnings; whether travel claim payments are an allowance or reimbursement; burden of proof; validity of claim, section 6.24 of the 2017 Act; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	Certificate Issued under section 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act, and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision is: (a) affirmed.

BACKGROUND

There is a dispute between Houssine Tissaoui (the claimant) and the insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act,.
The claimant was involved in a motor accident on 30 January 2022.
The claimant made an application for personal injury benefits under the MAI Act.
On 30 March 2022 the insurer determined the claimant’s pre-accident weekly earnings (PAWE) in the sum of $1,170.91 for the purpose of calculating whether the claimant is entitled to weekly payment of statutory benefits under sections 3.6 and/or 3.7 of the MAI Act.
The claimant requested an internal review of the insurer’s PAWE decision of 30 March 2022.
On 14 April 2022 the insurer issued their internal review decision in which the insurer affirmed their earlier determination that the claimant’s PAWE is $1,170.91.
The claimant has requested a merit review of the internal review decision dated 14 April 2022.

SUBMISSIONS

The claimant was employed as a security officer and says in addition to earnings recorded in his payslips:
(a) he was also “paid extra for doing regional work (travel claim)”; and
(b) he received COVID disaster payments in the relevant pre-accident period.
The claimant submits that his travel claim payments and COVID disaster payments should be included in calculation of his PAWE.
The insurer submits travel claim payments and COVID disaster payments are excluded from calculation of PAWE because:
(a) there is no evidence that payments seemingly made by the claimant’s employer into his bank account, which are not recorded in any of the payslips, represent earnings received by the claimant as an earner; and
(b) the claimant did not receive Centrelink COVID-19 disaster payments “as an earner”.

REASONS

Issues

The following issues arise for determination in this merit review:
(a)   whether COVID disaster payments are included in PAWE;
(b)   whether payments not recorded in payslips referred to as “travel claim” payments by the claimant are included in calculation of PAWE; and
(c)   calculation of the claimant’s PAWE.

Definition of PAWE

There is no dispute that the claimant is an earner or that his PAWE falls for assessment under Schedule 1, cl 4(1) of the MAI Act and not under one of the exceptions in clause 4(2).
Relevantly, pursuant to Schedule 1, cl 4(1) “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...”
Pursuant to cl 4(1) the claimant’s PAWE is the weekly average of the gross earnings he received as an earner during the 12 months immediately before the day on which the motor accident occurred. This period is 30 January 2021 to 29 January 2022, as the motor accident occurred on 30 January 2022.

COVID disaster payments

COVID disaster payments received by the claimant during the 52 week pre-accident period are excluded from PAWE. This is because the claimant achieves earner status for the purpose of the MAI Act by reason of being in receipt of earnings from employment or self-employment as per the definition of earner in Schedule 1, cl 2. Pursuant to cl 4(1) only earnings received by the claimant “as an earner” can be included in calculation of PAWE. The claimant did not receive Centrelink COVID-19 disaster payments “as an earner”. He did not perform any work for those payments. The claimant is not in a relationship of employee and employer with Centrelink and did not render services to Centrelink. Accordingly, the claimant did not receive the payments in the capacity of employee or for any services rendered.
Accordingly, COVID-19 disaster payments are not earnings received by the claimant as an earner and are therefore excluded from PAWE. This conclusion is consistent with the article “COVID-19 hub for injured workers and road users” published by the State Insurance Regulatory Authority which states “COVID-19 Disaster Payments are not considered earnings for the purpose of [PAWE]”.
The claimant does not submit in the alternative that his PAWE should be adjusted in some way to account for his reduced hours during the COVID lockdown. For completeness, however, I note there are no provisions under the MAI Act, Motor Accident Injuries Regulation or the Motor Accident Guidelines that permit adjustment of PAWE to account for the impact of the COVID-19 pandemic on a person’s ability to earn during the pre-accident period. The reasons for this are set out by Harrison AsJ in the Supreme Court decision in Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC (Shahmiri). In Shahmiri Harrison AsJ held that pursuant to Schedule 1, cl 4(1) PAWE is to be “calculated by taking … earnings over the whole of the 12-month period immediately before the day of the accident and dividing it by 52 reflecting the number of weeks during the whole 12-month period” and that the MAI does not allow any adjustment to this by reason of the COVID-19 pandemic or other break or reduction in employment or earnings.

“Travel claim” payments

Pursuant to schedule 1, cl 4(1) PAWE “…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…”.
Accordingly, “travel claim” payments can only be included in PAWE if they represent “earnings” received by the claimant “as an earner”. Whilst the claimant may have received the travel claim payments because he was an earner, the payments must also be “earnings” received as an earner. The use of the word “earnings” in clause 4(1) suggests “earnings” received as an earner are distinguishable from other “payments” received as an earner.
The claimant achieves earner status for the purpose of the MAI Act by reason of being in receipt of earnings from employment or self-employment as per the definition of earner in Schedule 1, cl 2. Pursuant to cl 4(1) only earnings received by the claimant “as an earner” are included in calculation of PAWE.
There is no definition of “earnings” in the MAI Act. However, the ordinary definition of “earnings” is money obtained in return for labour or services or the amount of money that someone is paid for working (see for example the Cambridge English Dictionary definition of earnings). Guidance can also be taken from the meaning of “loss of earnings” in the MAI Act, which means “income from personal exertion”. This is consistent with the ordinary meaning of “earnings” being money obtained in return for “labour” that is, personal exertion.
Relevantly, under Schedule 1, cl 3 “loss of earnings” means “a loss incurred or likely to be incurred in a person's income from personal exertion”. Under sub-clause 3(2) “income from personal exertion” means:
“(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) ...” (emphasis added)
The question therefore is whether the travel claim payments are an “allowance” paid by the employer to the claimant in relation to services rendered by the claimant.
Pursuant to Australian tax laws and Australian Taxation Office (ATO) guidelines and regulations, a travel allowance is a payment made to an employee to cover accommodation, food, drink or incidental expenses they incur when they travel away from their home overnight in the course of their duties (see for example >
Allowances are separately identified payments made to an employee for, among other things, work related travel expenses. They may be folded into normal salary or wages and therefore subject to withholding tax or they may be described as a separate, tax free allowance.
Allowances are distinct from reimbursements. Reimbursements are payments made to a worker for actual expenses already incurred, and the employer may be subject to fringe benefits tax (FBT). If the reimbursement is covered by FBT, the amount is not assessable income to the employee, and the employee cannot claim a deduction for the expense (see
The expense reimbursement process allows employers to pay back employees who have spent their own money for business-related expenses. When employees receive an expense reimbursement, typically they are not required to report such payments as wages or income to the ATO. It follows from this that reimbursements that is, a reimbursement payment to an employee for work related travel expenses already incurred by the employee is not income from personal exertion and is not “earnings” received as an earner for the purpose of PAWE.
Regardless of whether a travel or other allowance is taxable or exempt from tax, it should be recorded on an employee’s payslip. Reimbursement expenses on the other hand are not typically recorded in payslips.
The only evidence provided by the claimant as to the nature of the “travel claim” payments is his bank statements which show irregular deposits (irregular both in amount and frequency) by his employer into his account during the relevant pre-accident period. There is no description in the transactions in the bank statements that would assist to determine the nature of the payments. Notably, none of the payments are recorded in any payslips issued by the employer.
If the travel claim payments are in fact a travel “allowance” one would expect the payments to be recorded in the corresponding payslips issued by the employer, as required by the ATO. As they are not recorded in the payslips, I cannot be comfortably satisfied on the balance of probabilities that the payments represent an “allowance” as distinct from a reimbursement or other payment by the employer. Absent further information the following probabilities exist:
(a) that the payments are reimbursement of expenses already incurred by the claimant and therefore, the payments are not earnings received by the claimant as an earner; and/or
(b) that the payments are of some other type and therefore may not be earnings received by the claimant as an earner.
There is no evidence to suggest the probability that the payments are an allowance is more probable than either of the above probabilities. In fact, I consider it less probable that the payments are an allowance because:
(a)   the payments are not recorded in any payslips;
(b)   the payment cycle is irregular;
(c)   the payment amount is irregular (typically, for an allowance one would expect to see payment in a regular or fixed amount); and
(d)   on some dates more than one payment is made for example, on 28 May 2021 there is a payment of $82.80 and a second payment of $141, indicating the possibility that there was reimbursement of two separate invoices/expenses incurred by the claimant, with each reimbursement paid separately.
Pursuant to section 6.24 of the MAI Act the claimant has an obligation, among other things, to:
(a) co-operate fully in respect of the claim for the purpose of giving sufficient information to be satisfied as to the validity of the claim, and
(b) comply with any reasonable request by the insurer to furnish specified information (in addition to the information furnished in the claim) or to produce specified documents or records.
The claimant has the onus of establishing the travel claim payments are an allowance or other payment that represents “earnings received as an earner”. Under section 6.24 he must provide “sufficient information to be satisfied as to the validity of the claim” that is, in the context of this matter, to be satisfied as to the validity of his claim that the travel claim payments are an allowance or other payment representing earnings received as an earner.
The evidence provided is insufficient to discharge the claimant’s burden of proof. For the reasons set out above I am not comfortably satisfied that the travel claim payments are not reimbursement of expenses and are an allowance or other payment type comprising “earnings received as an earner”. Accordingly, the travel claim payments are excluded from calculation of PAWE.

Calculation of PAWE

There is no dispute that excluding COVID disaster payments and travel claim payments the claimant’s gross earnings as an earner received in the relevant pre-accident period from 30 January 2021 to 29 January 2022 were $60,887.41. The relevant pre-accident period under Schedule 1, cl 4(1) comprises 52 weeks. Gross earnings of $60,887.41 divided by 52 weeks produces PAWE in the amount of $1,170.91, as determined by the insurer in their internal review decision dated 14 April 2022.

CONCLUSION

As I have concluded that COVID disaster payments and travel claim payments are excluded from gross earnings received by the claimant as an earner in the relevant pre-accident period, the claimant’s PAWE amount is as determined by the insurer in their internal review decision dated 14 April 2022.
Accordingly, the reviewable decision is:
(a) affirmed.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
·        the application, reply and supporting documentation;
·        the MAI Act;
·        Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.

[2022] NSWPICMR 38

1 July 2022