Vivolo v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMRP 2
•11 August 2023
| DETERMINATION OF MERIT REVIEW PANEL | |
| CITATION: | Vivolo v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMRP 2 |
| ClaimanT: | Alessio Vivolo |
| Insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Merit Review Panel members: | Terrence O’Riain, Elizabeth Medland and Kattherine Ruschen |
| DATE OF DECISION: | 11 August 2023 |
| cATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; review of Merit Review determination about the amount of weekly payments of statutory benefits that are payable under Division 3.3; single Merit Reviewer affirmed the insurer’s pre-accident weekly earnings (PAWE) determination at $529.16; claimant applied for review of the Merit Review; application provided new evidence as amended 2020 financial year taxation return; Held – Review Panel remitted dispute to the insurer to re-determine PAWE; directions made for claimant to provide further information, including, copy of amended notice of tax assessment with source documents used to prepare the amended tax return. |
| Determinations made: | CERTIFICATE Issued under s 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 Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. In relation to the decision made by a single Merit Reviewer, the Review Panel determines that the reviewable decision is remitted to the insurer for re-determination pursuant to the following directions: (a) By on or before 25 August 2023 the claimant is to provide the following to the insurer: (i) a copy of the final, as lodged 2020 amended tax return; (ii) a copy of the notice of assessment/amended notice of assessment issued by the ATO in response to the 2020 amended tax return, and (iii) a copy of all source documents used to prepare the supplementary section of the amended tax return that is, all Uber tax summaries, all invoices, all receipts, all bank statements and any other financial records used to calculate the increased small business earnings in the amended tax return in the sum of $24,453 gross ($21,818 net) being an increase from the amount of $13,613 gross ($11,548 net) declared in the original 2020 tax return. (b) The insurer may request the above documents and any other information reasonably required directly from the claimant’s accountant pursuant to the claimant’s authority in the application for personal injury benefits. (c) Upon receipt of further information and documents pursuant to the above directions the insurer is to re-determine the claimant’s pre-accident weekly earnings taking into consideration the amended tax return and further documents and information provided by the claimant. 2. The claimant’s costs are not assessed in accordance with the Motor Accident Injuries Regulation 2017, because he is self-represented. |
REASONS
BACKGROUND
Alessio Vivolo (the claimant), was injured in a motor accident on 9 July 2020. IAG Ltd t/as NRMA Insurance (the insurer) accepted the claimant’s claim under the Motor Accident Injuries Act 2017 (the MAI Act).
There was a dispute between the parties about the amount of weekly benefits payable under Division 3.3 of the MAI Act. In a decision dated 24 September 2020, the insurer determined that the claimant’s pre-accident weekly earnings (PAWE) was $498.06. On internal review dated 5 November 2020, the insurer determined that the claimant’s PAWE was $519.16.
There is no dispute that the claimant is an earner within the meaning in the MAI Act. The dispute is in relation to whether the claimant could include fees paid to the food delivery service he worked for before the accident in calculating PAWE and the claimant’s PAWE amount.
The dispute was referred to the Personal Injury Commission (Commission). Merit Reviewer Sofoulis conducted a merit review and issued a certificate dated 17 May 2022, affirming the insurer’s decision dated 5 November 2020. The claimant’s PAWE was calculated at $519.16 (the Certificate).
On 3 April 2023, the claimant lodged an amended income tax return for the year ending
30 June 2020 and submits that the tax return used by the insurer when determining his PAWE was wrong because he worked four jobs and the accountant “got confused”.
The claimant has not applied for, and the insurer has not reviewed its original decision to take into consideration the amended tax return. The claimant and the insurer have not provided submissions to this Panel in respect of the amended tax return.
The Presidential delegate surmised that the claimant applied for a review of Merit Reviewer Sofoulis certificate on the grounds that the amended tax return may lead to a different outcome. The claimant has not provided any submissions containing his own PAWE calculation.
Under s 7.15 of the MAI Act the President’s delegate was satisfied that there was reasonable cause to suspect that the decision determining the review was incorrect in a material respect, because the claimant had provided an amended tax return for the relevant period.
The review has been referred to this Review Panel (Panel).
The objects of the MAI Act are set out in s 1.3(2). The MAI Act seeks "the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes” and “to provide early and ongoing financial support for persons injured in motor accidents".
Section 1.3(4) says a decision maker should promote the objects of the MAI Act when interpreting those provisions.
Section 1.3(5) provides that the decision-maker must act in a way that promotes the objects of the MAI Act when exercising an MAI Act discretion. Part 5 of the PIC Act enables the Commission to make rules regarding the Commission’s practice and procedure. This includes panel proceedings reviewing Merit Reviewers’ or Medical Assessors’ decisions.[1]
[1] Section 41(2) of the PIC Act.
Section 3 sets out the objectives of the Personal Injury Commission Act 2020 (the PIC Act) and includes ensuring the Commission’s decisions are timely, fair, consistent and of high quality. It also enables the Commission to decide matters justly, quickly, cost-effectively and with as little formality as possible.
Section 4 of the PIC Act echoes ss 1.3(4) and (5) of the MAI Act and requires exercising the powers and discretions to promote the PIC Act.
Section 42(1) of the PIC Act and the Commission Rules contain the Commission’s ‘guiding principle’. The section requires the Commission to facilitate “the just, quick and cost-effective resolution of the real issues in the proceedings”.
Section 42(2) requires the Panel to give effect to the guiding principle when exercising any power given to a decision-maker under the PIC Act or the rules.
The rules of evidence do not apply to this review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
Merit review
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is a new assessment of all matters with which the reviewable dispute is concerned, which is a dispute between the parties about the amount of weekly benefits payable under Division 3.3 of the MAI Act.
The Panel, comprised of Merit Reviewers, is required to form its own opinion in accordance with the authorities regarding review panels: Insurance Australia Group Ltd v Keen[4] and Insurance Australia Ltd v Marsh.[5]
[4] [2021] NSWCA 287 at [40], [41] and [45].
[5] [2022] NSWCA 31 at [11], [21] and [64].
The Panel is making a fresh assessment of the dispute rather than reviewing the Merit Reviewer’s decision. The Panel is required to decide what the correct and preferable decision is in respect to this merit review.
In accordance with Procedural Direction PIC2 the Panel is satisfied that sufficient information has been supplied in connection with the proceedings, so the Panel may determine the matter on the papers without holding a teleconference with the parties or a formal hearing (see s 52(3) of the PIC Act).
Documents considered
The Panel considered the original application and the documentation attached to the Application and Reply, as well as the later material lodged after the merit review decision.
Having viewed the amended tax return it is apparent that if that document is used to recalculate PAWE it will lead to a different outcome. However, the version of the amended tax return provided by the claimant appears to be a draft version. It also does not represent the precise 12-month pre-accident period from 9 July 2019 to 8 July 2020.
There are two amendments to the tax return:
(a) an amendment to include Eternal air income, and
(b) an amendment to increase net sole trader income from $11,548 to $21,818.
Whilst no submissions have been received from the parties it appears unlikely that the amendment to the tax return to include Eternal Air income would be in dispute, as the insurer allowed for this income in their calculation of PAWE in any event, despite its omission from the original tax return. The variation between the amount allowed by the insurer for the purpose of PAWE and the amount in the amended tax return can be accounted for by reason that a portion of the Eternal Air income declared in the amended tax return was received by the claimant prior to commencement of the 12-month pre-accident period on 9 July 2019 and is therefore excluded from PAWE.
However, in relation to the amendment to increase sole trader income in the tax return it appears the claimant has not made available to the insurer the source documents such as invoices, receipts, bank statements and to the extent the income came from Uber, Uber tax summaries to support the increased amount for sole trader earnings. In other words, on the current material the amendment to increase sole trader income cannot be verified. Accordingly, it is not known whether this is in dispute.
The Panel is of the view that further information is required from the claimant to support the amended tax return in so far as the amendment concerns sole trader earnings and that the insurer ought to be given an opportunity to consider the new information and re-determine the claimant’s PAWE rather than call for further documents and submissions from the parties in the context of this review. The Panel is of the view that in the circumstances of new information not yet considered by the insurer and a requirement for further information in support of that document, the correct and preferable outcome considering the object of the MAI Act and the Commission’s guiding principles, is to remit this dispute back to the insurer to consider the new information and re-determine PAWE, taking into account the new information.
If the claimant is dissatisfied with the insurer’s re-determination he can seek an internal review by the insurer and in turn, a further merit review under the MAI Act if he remains dissatisfied with the insurer’s decision.
Conclusion
In relation to the decision made by a single Merit Reviewer, the Review Panel determines that the reviewable decision is remitted to the insurer for re-determination pursuant to the following directions.
By on or before 25 August 2023 the claimant is to provide the following to the insurer:
(a) a copy of the final, as lodged 2020 amended tax return;
(b) a copy of the notice of assessment/amended notice of assessment issued by the ATO in response to the 2020 amended tax return, and
(c) a copy of all source documents used to prepare the supplementary section of the amended tax return that is, all Uber tax summaries, all invoices, all receipts, all bank statements and any other financial records used to calculate the increased small business earnings in the amended tax return in the sum of $24,453 gross ($21,818 net) being an increase from the amount of $13,613 gross ($11,548 net) declared in the original 2020 tax return.
The insurer may request the above documents and any other information reasonably required directly from the claimant’s accountant pursuant to the claimant’s authority in the application for personal injury benefits.
Upon receipt of further information and documents pursuant to the above directions the insurer is to re-determine the claimant’s PAWE taking into consideration the amended tax return and further documents and information provided by the claimant.
The claimant’s costs are not assessed in accordance with the Motor Accident Injuries Regulation 2017, because he is self-represented.
Legislation and guidelines
The Review Panel considered the following:
· MAI Act;
· The Motor Accident Guidelines (the Guidelines), and
· Motor Accident Injuries Regulation 2017.
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