Towers v GIO

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Towers v GIO [2022] NSWPICMR 2
CLAIMANT:	Jonathon Towers
INSURER:	GIO
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	5 January 2022
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); change of circumstances under schedule 1, clause 4(3) of the MAI Act; whether COVID-19 is a change of circumstances for the purpose of clause 4(3) of the MAI Act; inconsistencies between documents; onus of proof; balance of probabilities; Held – the reviewable decision is varied.
DETERMINATIONS MADE:	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 varied on the following terms: (a) The claimant’s pre-accident weekly earnings (PAWE) is calculated in the sum of $1,739.44 on a temporary, interim basis subject to recalculation of PAWE by the insurer pursuant to the below directions. (b) By on or before 19 January 2022 the claimant is to provide the insurer with copies of the following: (i) Payslips issued by Tap It for wages paid by Tap It to the claimant for the period 11 November 2019 to 10 November 2020. (ii) Group certificates/pay as you go certificates issued by Tap It to the claimant for the financial years ending 30 June 2020 and 30 June 2021 (note the claimant or his accountant ought to be able to download these documents from his MyGov online account). (c) Group certificates/pay as you go certificates issued by Tap It to the claimant for the financial years ending 30 June 2020 and 30 June 2021 (note the claimant or his accountant ought to be able to download these documents from his MyGov online account). By on or before 19 January 2022 the claimant is to provide his authority to the insurer authorising Tap It to provide the insurer with further information and documents, as may be requested by the insurer in relation to actual earnings of the claimant from Tap It in the period 11 November 2019 to 10 November 2020 (the insurer may request the employer’s duplicate copy of payslips from Tap It for the period 11 November 2019 to 10 November 2020 pursuant to this authority regardless of whether the Claimant is able to produce his own copy of payslips to the insurer). (d) By on or before 19 January 2022 the claimant is to provide his authorities to the insurer authorising Qudos Bank and ANZ to provide the insurer with further information and documents, as may be requested by the insurer regarding the source of payments/identity of the payer in relation to the CBA transfers identified in the claimant’s bank statements by him as being wages paid by Tap It with a view to verifying where these payments came from/by whom they were made. (e) Following receipt of further information and documents pursuant to the above directions the insurer is to recalculate the claimant’s PAWE based on gross income from Jay Tees Hire in the period 11 November 2019 to 10 November 2020 in the sum of $53,350 (as per paragraph 44 of this decision) together with the amount of income from Tap It in the period 11 November 2019 to 10 November 2020, if any, that is verified by such payslips and/or documents or further information that the insurer receives from Tap It and/or Qudos Bank or ANZ pursuant to these directions. (f) If income allegedly from Tap It in the bank statements is not independently verified by documents and/or further information from Tap It, Qudos or ANZ then the insurer may determine that the claimant’s PAWE is $1,232.69 calculated as follows: (i) Income from Tap It: $325.75 gross per week from 11 November 2019 to 30 June 2020 (33 weeks) = $10,749.75 based on the weekly average of gross income declared from Tap It in the 2020 tax return ($16,939 divided by 52) and nil from 1 July 2020 to 10 November 2020 based on no Tap It income declared in the 2021 tax return. (ii) Jay Tees Hire: $53,350 gross from 11 November 2019 to 10 November 2020 pursuant to the calculation at paragraph 44 of this decision. (iii) Total gross income from Tap It and Jay Tees Hire: $64,099.75 ($53,350 plus $10,749.75). (iv) PAWE: $64,099.75 divided by 52 = $1,232.69.

Certificate

Issued under section 7.13(4) of the Motor Accident Injuries Act2017

Background

There is a dispute between Jonathon Towers (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 11 November 2020.
Prior to the accident the claimant worked as a plumber both in the capacity of employee of a business or company known as “Tap It Plumbing” and as an employee of his own company, Jay Tees Hire Pty Limited.
The claimant made an application for statutory benefits including weekly payments under Division 3.3 of the MAI Act.
On 16 February 2021 the insurer calculated the claimant’s PAWE in the sum of $1,305.02.
The claimant requested an internal review of the 16 February 2021 PAWE decision.
On 26 May 2021 the insurer issued their internal review decision which adjusted the claimant’s PAWE to $1,777.90.
The claimant has applied for a merit review of the insurer’s internal review decision dated 26 May 2021.

Submissions

The claimant submits the insurer calculated his PAWE based on his net earnings, after tax rather than his gross earnings in the relevant period.
In addition, the claimant submits there was a change in circumstances pursuant to clause 4(3) of Schedule 1 of the MAI Act such that his PAWE should be calculated over the period 31 August 2020 to 12 November 2020 or in the alternative, 19 June 2020 to 31 August 2020. The change in circumstances which the claimant contends triggers clause 4(3) is that either from 31 August 2020 or between 19 June 2020 and 31 August 2020 the claimant’s company, Jay Tees Hire substantially recovered from the impact of COVID-19 experienced in early 2020.
The claimant contends that pursuant to clause 4(3) his PAWE is either $2,585 if taken from 31 August 2020 to 12 November 2020 or $2,250 if taken from 19 June 2020 to 31 August 2020.
The insurer contends there is no basis upon which clause 4(3) applies and that the claimant’s PAWE has been correctly calculated based on gross earnings in the relevant period.

Reasons

The legislation

There is no dispute that the claimant is an earner pursuant to Schedule 1, clause 2 of the MAI Act.
The dispute is over the amount of the claimant’s PAWE under clause 4 of Schedule 1.
Pursuant to clause 4 of Schedule 1 of the MAI Act PAWE means:
Meaning of "pre-accident weekly earnings"—general
(1)    "Pre-accident weekly earnings" , in relation to an earner who is injured as a result of a motor accident, means the weekly average of the gross earnings received by the earner as an earner during the 12 months immediately before the day on which the motor accident occurred, unless subclause (2) applies.
(2)    In the following cases, "pre-accident weekly earnings" , in relation to an earner who is injured as a result of a motor accident, means—
(a) if, on the day of the motor accident, the earner was earning continuously, but had not been earning continuously for at least 12 months--the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the day of the motor accident,
(a1) if the earner was employed or self-employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period, but was not obtaining earnings from any source at any other time during the pre-accident period--the average weekly gross earnings received by the earner as an earner during the first year of the pre-accident period,
(b) if subclause (3) applies--the weekly average of the gross earnings received by the earner as an earner during the period from when the change of circumstance referred to in that subclause occurred to immediately before the day of the motor accident,
(c) if the earner is an earner by reason of having entered into an arrangement with an employer or other person to undertake employment or to commence business as a self-employed person--the average weekly gross earnings that the earner could reasonably have been expected to earn, but for the injury, in employment under that arrangement.
(2A) The "pre-accident period" , in relation to a motor accident, is the period of 2 years immediately preceding the motor accident.
(3)    This subclause applies if, during the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred.

Note : Examples of a change of circumstances to which this subclause would apply include a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards.
(4) For the purposes of this clause, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the day of the motor accident, was likely to continue for a period of at least 6 months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were being provided as at that day.

Was there a change in circumstances for the purpose of clause 4(3)?

Clause 4(3) is triggered:
“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” (emphasis added).
The claimant contends the change in circumstances is his company recovering from the impact that COVID-19 had on business in the first half of 2020. However, clause 4(3) makes clear that the change in circumstances must be as a result of an action taken by the earner and rules out factors not the result of action taken by the earner such as an unpredicted pandemic. The impact of a pandemic on earnings, including post pandemic recovery of earnings, is not an “action taken by the earner”. Rather, it is an unpredicted event arising not from any action of the claimant but from circumstances outside his control. Accordingly, clause 4(3) is not triggered.
That the change in circumstances must be brought about by an action taken by the claimant is reinforced by the examples provided in clause 4(3). The examples provided are a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards. Whilst this is not an exhaustive list these are all circumstances that arise from an action taken by the earner rather than the result of matters outside the earner’s control. The examples are consistent with the wording of clause 4(3) that the change must be “as a result of any action taken by the earner”. By reason of these words there is no scope to apply clause 4(3) to a change in circumstances arising out of other factors not the result of an action by the earner such as the easing of restrictions relating to the COVID-19 pandemic and in turn, economic recovery as a result.
Further, the 12-month pre-accident period is from 11 November 2019 to 10 November 2020. Covid-19 would not have had any impact on the claimant’s earnings until at least February 2020. The change the claimant relies on is not a change which entitled the claimant to earn more on a weekly basis than he was earning before the change occurred. Rather, it was a change that, according to the claimant resulted in the claimant returning to his usual earnings during the same 12-month pre-accident period.
There is no scope under the MAI Act for the circumstance described by the claimant to represent a change in circumstances which triggers clause 4(3), as the circumstance relied upon is not the result of any action taken by the claimant. Rather, it is the result of a pandemic, which were circumstances arising independently of any action by the claimant. Further, the change is more appropriately described as a return to the claimant’s usual, pre-pandemic earnings rather than a change resulting in him being entitled to earn more than he had previously earned during the relevant 12-month pre-accident period.
Accordingly, I am of the view that clause 4(3) does not apply to the claimant.
There is no evidence that any of the exceptions in clause 4(2) apply. Accordingly, the claimant’s PAWE falls for assessment under clause 4(1), which requires the claimant’s PAWE to be calculated on the basis of the weekly average of the gross earnings received by him as an earner during the 12 months immediately before the day on which the motor accident occurred. As noted above this period is 11 November 2019 to 10 November 2020.

Calculation of PAWE under clause 4(1)

The claimant worked as a plumber during the 12-month pre-accident period in two different capacities, as follows:
(a) as an employee of his own company, Jay Tees Hire Pty Limited, and
(b) as an employee of a third-party plumbing business or company called “Tap It”.
Pursuant to section 1.5.1 of the Corporations Act Jay Tees Hire Pty Limited is a separate legal entity with separate legal existence distinct from the claimant as director and employee of the company.
The documentary evidence demonstrates the claimant derived income from Jay Tees Hire as an employee of the company, with regular wages paid to him by Jay Tees Hire.
The evidence shows the claimant also received wages from Tap It.
The claimant’s tax returns demonstrate the following:
(a)   From 1 July 2018 to 30 June 2019 the claimant received gross wages from Tap It in the sum of $56,730 and from Jay Tees Hire in the sum of $14,000 together with supplementary business income of $17,781 from a web development business. This gave him a total gross income of $89,706 and a weekly average of $1,725.16 in this tax year, inclusive of his web development business income.
(b)   From 1 July 2019 to 30 June 2020 the claimant received gross wages from Jay Tees Hire in the sum of $5,181 and from Tap It in the sum of $16,939. Nil supplementary income was declared from the web development business. Accordingly, the claimant earned $32,489 gross, being an average of $624.79 per week in this period.
(c)   From 1 July 2020 to 30 June 2021 the claimant received no wages whatsoever, as the only income he declared in this tax year is the payment of weekly benefits by the insurer during the period 12 November 2020 to 30 June 2021 in the sum of $50,498. This does not correlate with the claimant’s contention that he earned over $2,000 per week from his plumbing work during the period 1 July 2020 to 11 November 2020, which falls in the 2020/2021 tax year.
The documents also evidence that the claimant runs another company, The Sup Spot Pty Ltd, which sells sports supplements online. According to the tax returns this company runs at a loss. There is no evidence that the claimant derived any income from this company prior to the accident.
Despite directions made by me the claimant has failed to provide complete payslips for the wages he received from Tap It during the relevant pre-accident period (that is, from 11 November 2019 to 10 November 2020). He has also failed to provide payslips for wages paid to him by his company, Jay Tees Hire.
The claimant has, however, provided bank records for the period 11 November 2019 to 10 November 2020 evidencing deposits made into two accounts which he contends are wages paid to him by Tap It and Jay Tees Hire.
In addition, the claimant provided an email from his accountant who states they pay the claimant’s income tax either quarterly in the BAS or at the end of the financial year rather than deducting it weekly from the claimant’s pay. As the claimant’s plumbing work is by way of a company set up with the claimant as an employee the reference to BAS is presumably a reference to the claimant’s web development business which, based on the supplementary income declared in tax returns appears to be set up as a sole trader business, which would need to complete BAS each quarter. To the extent the reference to BAS is a reference to Jay Tees Hire, as noted this is a separate legal entity from the claimant.
The claimant also provided a Profit and Loss statement for Jay Tees Hire for the period 8 November 2019 to 11 November 2020 which shows a wages and salaries expense for the company in this period totalling $55,931.
On 25 May 2021 the claimant’s accountant confirmed orally with the insurer that the wages and salaries total in the Profit and Loss statement included a small amount to subcontractors and that the money paid into the claimant’s bank account by Jay Tees Hire represented gross wages that is, before tax, not net wages.
Accordingly, it is apparent that to the extent any deposits into the claimant’s bank account represent wages paid by Jay Tees Hire to the claimant the amounts deposited are gross payments, with no tax withheld. I am therefore satisfied that to the extent PAWE in the internal review decision of 26 May 2021 is based on payments into the claimant’s bank account by Jay Tees Hire it is correctly calculated based on gross payments, not net.
There are several anomalies in the claimant’s records which suggest caution is to be exercised regarding the veracity of the claimant’s contentions regarding the documents. For example, the deposits into two separate bank accounts identified by the claimant as payment of wages to him do not accord with the income declared by the claimant in his tax returns. One example is the 2020 tax return in which the claimant only declared the sum of $5,181 received in income from Jay Tees Hire in the 12-month period from 1 July 2019 to 30 June 2020. However, bank records covering only part of this period from 8 November 2019 to 30 June 2020 suggest the claimant earned significantly more from Jay Tees Hire in this financial year, if the deposits identified by the claimant are to be accepted as wages paid by Jay Tees Hire to the claimant.
In so far as income received from Tap It is concerned the records provided appear even more unreliable for several reasons, as outlined below.
Firstly, the deposits do not identify the payer as Tap It, or any payer at all. The narrative for these deposits reads as if they are transfers by the claimant from another account of the claimant. The deposits identified by the claimant are recorded as either “From CBA Pay” or “Direct credit CBA pay”. This is unusual. Ordinarily the employer would be identified in the bank statement, as is the case with Jay Tees Hire. Accordingly, it is unclear whether these payments are in fact wages or are transfers by the claimant from a CBA account held by him into his Qudos and ANZ accounts.
Secondly, the claimant relies on payments allegedly made by Tap It into two different bank accounts. However, there is no explanation from the claimant as to how Tap It obtained details of two different accounts for the claimant and randomly made payments into the ANZ account for a discreet period when all other payments are said to be made to the Qudos account. The claimant’s representations to the insurer about the late discovery by him of payments into the ANZ account suggests the claimant was unaware that this had occurred. However, Tap It could only make such payments if the claimant provided bank account details to Tap It in relation to the second, ANZ bank account. It is difficult to accept the ANZ deposits are wages paid by Tap It in circumstances where the claimant was seemingly unaware that this had occurred until after the first PAWE calculation by the insurer on 16 February 2021. As noted, wages could not be paid into an earner’s bank account without their knowledge as it would first be necessary for the earner to expressly provide the bank account details to the employer before any payment could occur.

Thirdly, despite directions of the Commission the claimant has not provided any or sufficient evidence of income received from Tap It in the form of pay as you go (PAYG) certificates or payslips that presumably were issued by Tap It to the claimant. No adequate explanation has been provided by the claimant as to why he has been unable to provide payslips from Tap It evidencing gross and/or net payment of wages to the claimant in the period 11 November 2019 to 10 November 2020. If Tap It deducted income tax before making payment to the claimant, as contended by the claimant and as suggested by the tax returns then presumably the claimant would be able to provide his payslips and pay as you go certificates as evidence of this.
There is insufficient evidence upon which to conclude the deposits relied upon as wages from Tap It are net wages. Accordingly, I conclude on balance of probabilities the deposits allegedly made by Tap It are gross wages, if they are in fact payments from Tap It.
Fourthly, the tax returns do not support the claimant’s contentions that the bank statements evidence his earnings from Tap It. Given the claimant’s legal obligations to the ATO and the requirement that he provide a declaration as to the truthfulness and correctness of his tax returns to the ATO one would expect there to be a direct correlation between the declared income in the tax returns and the claimant’s contentions in relation to the bank statements. Declared income in the tax returns from Tap It should equate to the same amount as the transactions identified by the claimant in his bank statements for the corresponding period. Even though the claimant has not provided bank statements for the full financial years and has only provided bank statements for the 12-month pre-accident period it is apparent the earnings declared to the ATO are inconsistent with the claimant’s contentions in relation to the bank statements. For example, the transactions relied on by the claimant as income for the period 8 November 2019 to 30 June 2020 total $49,757. Even though this is only part of the financial year 1 July 2019 to 30 June 2020 the tax return declares total income from Jay Tees Hire and Tap It in the sum of only $32,489 ($16,939 from Tap It) which is significantly less than the claimant’s contended earnings based on the bank statements.
Similarly, the bank statements based on the claimant’s contentions show earnings of $42,700 in the period 1 July 2020 to 5 November 2020 yet no income from Jay Tees Hire or Tap It is declared at all in the tax return for 1 July 2020 to 30 June 2021. According to the tax return for 2020/2021 the claimant did not earn any income from Tap It or Jay Tees Hire and his only income was the payment of weekly benefits by the insurer in relation to the subject accident.
Given the stark difference between the bank statements, as represented by the claimant in relation to transactions said to be wages and the tax returns which represent declared income to the ATO together with the lack of any reference to Tap It in the bank statements and the claimant’s failure to provide payslips and/or PAYG certificates from Tap It for the relevant period I have difficulty accepting the bank statements as accurate or reliable evidence of the claimant’s earnings in the relevant pre-accident period. I consider the veracity of the claimant’s contentions regarding the bank statements to be in question, particularly those payments from CBA with no payer identified. The onus is on the claimant to establish his pre-accident income on the balance of probabilities. The difference between the tax returns and the claimant’s contentions regarding the content of the bank statements casts sufficient doubt over the veracity of the claimant’s contentions such that I am not satisfied on the balance of probabilities that the claimant’s income is the total of deposits identified by him in the bank statements.
The only reliable evidence of the claimant’s earnings in the period 11 November 2019 to 10 November 2020 is the profit and loss statement prepared by the claimant’s accountant showing wages in the sum of $55,931. This includes a small amount paid to subcontractors and accords with the bank statements in so far as the bank statements expressly identify payments from Jay Tees Hire. The bank statements show a total of $54,100 from Jay Tees Hire in the same period. On that basis, the subcontractor amount to be deducted is $1,831. Further, the bank statements and corresponding profit and loss statement include a payment of $750 from Jay Tees on 8 November 2019 which is before the commencement of the relevant pre-accident period on 11 November 2019 and is therefore to be excluded. Accordingly, I find that the claimant’s income from Jay Tees Hire in the period 11 November 2019 to 10 November 2020 is $53,350 being $55,931 as evidenced by the profit and loss statement less subcontractor payments of $1,831 less wages of $750 paid outside the pre-accident period on 8 November 2021.
What is in question, however, is the extent to which the claimant received additional income as an employee of Tap It. Having regard to the four curious aspects of the claimant’s evidence identified above in relation to the bank statements I am of the view the claimant has not established on the balance of probabilities that he earned as much from Tap It as he contends. I consider the amount is likely significantly less having regard to the tax returns.
Of note, the claimant appears to run another company unrelated to his plumbing work called The Sup Spot Pty Limited which appears to be an online supplement store. Whilst ultimately, significant expenses are claimed by this company resulting in a net loss it had a significant annual gross turnover of around $200,000 in 2019/2020 and 2020/2021. This raises questions as to whether the claimant in fact worked as much as he said he did as a plumber for two different companies or whether most of the claimant’s time was devoted to The Sup Spot. It is noted that in previous years the claimant also had a web development business.
As merit reviewer my role is to consider the material before me and determine what is the correct and preferable decision, having regard to the interests of justice. On the one hand, the insurer has accepted the claimant’s contentions that his bank statements record earnings from Jay Tees Hire and Tap It even though they suggest an amount considerably higher than the amount declared by the claimant as income from these two sources in his corresponding tax returns. On the other hand, it appears the insurer has not undertaken a detailed analysis of the documents and on my analysis, the contentions regarding income from Tap It in the bank statements are questionable and ought to be verified by some other evidence. With all of this in mind I determine that the claimant’s PAWE is $1,739.44 on an interim basis only, subject to the directions outlined further below.
The interim PAWE of $1,739.44 is calculated on the same basis as the insurer’s internal review decision of 26 May 2021 save for the fact that I have deducted two payments in the bank statements that fall outside the pre-accident period and are therefore to be excluded from calculation of PAWE. The two excluded payments are a payment by Jay Tees Hire on 8 November 2019 in the sum of $750 and a payment allegedly from Tap It on 8 November 2019 in the sum of $1,250. The exclusion of these two payments reduces the total earnings in the period 11 November 2019 to 10 November 2020 based on the bank statements to $90,451. That sum divided by 52 weeks produces PAWE in the sum of $1,739.44.

Directions

The claimant’s PAWE is calculated in the sum of $1,739.44 on a temporary, interim basis subject to recalculation of PAWE pursuant to the below directions.
By on or before 19 January 2022 the claimant is to provide the insurer with copies of the following:
(a) Payslips issued by Tap It for wages paid by Tap It to the claimant for the period 11 November 2019 to 10 November 2020.
(b) Group certificates/pay as you go certificates issued by Tap It to the laimant for the financial years ending 30 June 2020 and 30 June 2021 (note the laimant or his accountant ought to be able to download these documents from his MyGov online account).
By on or before 19 January 2022 the claimant is to provide his authority to the insurer authorising Tap It to provide the insurer with further information and documents, as may be requested by the insurer in relation to actual earnings of the claimant from Tap It in the period 11 November 2019 to 10 November 2020 (the insurer may request the employer’s duplicate copy of payslips from Tap It for the period 11 November 2019 to 10 November 2020 pursuant to this authority regardless of whether the claimant is able to produce his own copy of payslips to the insurer).
By on or before 19 January 2022 the claimant is to provide his authorities to the insurer authorising Qudos Bank and ANZ to provide the insurer with further information and documents, as may be requested by the insurer regarding the source of payments/identity of the payer in relation to the CBA transfers identified in the claimant’s bank statements by him as being wages paid by Tap It with a view to verifying where these payments came from/by whom they were made.
Following receipt of further information and documents pursuant to the above directions the insurer is to recalculate the claimant’s PAWE based on gross income from Jay Tees Hire in the period 11 November 2019 to 10 November 2020 in the sum of $53,350 (as per paragraph 44 of this decision) together with the amount of income from Tap It in the period 11 November 2019 to 10 November 2020, if any, that is verified by such payslips and/or documents or further information that the insurer receives from Tap It and/or Qudos Bank or ANZ pursuant to these directions.
If income allegedly from Tap It in the bank statements is not independently verified by documents and/or further information from Tap It, Qudos or ANZ then the insurer may determine that the claimant’s PAWE is $1,232.69 calculated as follows:
(a)   Income from Tap It: $325.75 gross per week from 11 November 2019 to 30 June 2020 (33 weeks) = $10,749.75 based on the weekly average of gross income declared from Tap It in the 2020 tax return ($16,939 divided by 52) and nil from 1 July 2020 to 10 November 2020 based on no Tap It income declared in the 2021 tax return.
(b)   Income from Jay Tees Hire: $53,350 gross from 11 November 2019 to 10 November 2020 pursuant to the calculation at paragraph 44 of this decision.
(c)   Total gross income from Tap It and Jay Tees Hire: $64,099.75 ($53,350 plus $10,749.75).
(d)   PAWE: $64,099.75 divided by 52 = $1,232.69.

Conclusion

The reviewable decision is varied on the following terms:
(a)   The claimant’s PAWE is calculated in the sum of $1,739.44 on a temporary, interim basis subject to recalculation of PAWE by the insurer pursuant to the below directions.
(b)   By on or before 19 January 2022 the claimant is to provide the insurer with copies of the following:
(i)Payslips issued by Tap It for wages paid by Tap It to the claimant for the period 11 November 2019 to 10 November 2020.
(ii)Group certificates/pay as you go certificates issued by Tap It to the claimant for the financial years ending 30 June 2020 and 30 June 2021 (note the claimant or his accountant ought to be able to download these documents from his MyGov online account).
(c)   By on or before 19 January 2022 the claimant is to provide his authority to the insurer authorising Tap It to provide the insurer with further information and documents, as may be requested by the insurer in relation to actual earnings of the claimant from Tap It in the period 11 November 2019 to 10 November 2020 (the insurer may request the employer’s duplicate copy of payslips from Tap It for the period 11 November 2019 to 10 November 2020 pursuant to this authority regardless of whether the claimant is able to produce his own copy of payslips to the insurer).
(d)   By on or before 19 January 2022 the claimant is to provide his authorities to the insurer authorising Qudos Bank and ANZ to provide the insurer with further information and documents, as may be requested by the insurer regarding the source of payments/identity of the payer in relation to the CBA transfers identified in the claimant’s bank statements by him as being wages paid by Tap It with a view to verifying where these payments came from/by whom they were made.
(e)   Following receipt of further information and documents pursuant to the above directions the insurer is to recalculate the claimant’s PAWE based on gross income from Jay Tees Hire in the period 11 November 2019 to 10 November 2020 in the sum of $53,350 (as per paragraph 44 of this decision) together with the amount of income from Tap It in the period 11 November 2019 to 10 November 2020, if any, that is verified by such payslips and/or documents or further information that the insurer receives from Tap It and/or Qudos Bank or ANZ pursuant to these directions.
(f)    If income allegedly from Tap It in the bank statements is not independently verified by documents and/or further information from Tap It, Qudos or ANZ then the insurer may determine that the claimant’s PAWE is $1,232.69 calculated as follows:
(i)Income from Tap It: $325.75 gross per week from 11 November 2019 to 30 June 2020 (33 weeks) = $10,749.75 based on the weekly average of gross income declared from Tap It in the 2020 tax return ($16,939 divided by 52) and nil from 1 July 2020 to 10 November 2020 based on no Tap It income declared in the 2021 tax return.
(ii)Jay Tees Hire: $53,350 gross from 11 November 2019 to 10 November 2020 pursuant to the calculation at paragraph 44 of this decision.
(iii)Total gross income from Tap It and Jay Tees Hire: $64,099.75 ($53,350 plus $10,749.75).
(iv)PAWE: $64,099.75 divided by 52 = $1,232.69.

Legislation and Guidelines

In making this decision, I have considered the following:
· The application, reply and supporting documentation;
· Motor Accident Injuries Act 2017 (NSW) (the MAI Act);

· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.

Katherine Ruschen
Merit Reviewer
Personal Injury Commission

[2022] NSWPICMR 2

5 January 2022