Watts v QBE

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Watts v QBE [2022] NSWPICMR 8
CLAIMANT:	Malcolm Watts
INSURER:	QBE
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	10 February 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); meaning of pre-accident earning capacity schedule 1, clause 7 of the MAI Act; meaning of post-accident earning capacity schedule 1, clause 8 of the MAI Act; qualifications, training, skills and experience; suitable employment; whether overqualification is relevant consideration; costs; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	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. The reviewable decision is: (a) affirmed. 2. The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is Nil.

BACKGROUND

There is a dispute between Malcolm Watts (the claimant) and the insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the MAI Act.

The claimant was involved in a motor accident on 22 October 2019.
The claimant made an application for payment of weekly benefits under the MAI Act.
There is no dispute that the claimant is an earner within the meaning of the MAI Act.
The dispute is in relation to entitlements to weekly payments in the period after the second entitlement period ends under section 3.8 of the MAI Act.
Prior to the motor accident the claimant held various office-based, administrative type roles ranging from housing manager/registry and records supervisor, office manager, accounts payable officer, administration manager and credit controller. The claimant contends he was employed as a full time “senior credit controller” by Henry Schaine Halas earning $1,222.18 per week immediately before the motor accident.
The claimant’s employment history in these types of roles spans from 1981 to 2019.
Although evidence in support has not been provided the claimant submits he holds the following qualifications:
(a)    Diploma in Accounting from the Royal Australian Air Force.
(b)    Bachelor’s degree in accounting from the QLD University of Technology.
(c)    Diploma in Management from Impact Training.
The claimant is 60 years of age.
After the motor accident the claimant returned to his pre-injury employment. He lost only three days’ work due to the motor accident. The claimant’s employment was subsequently terminated on or about 19 December 2019. The reasons for termination have not been made known to me and no evidence has been provided to support any submission that termination was related in some way to injuries sustained in the motor accident.
It is apparent from the available evidence that the claimant was not employed on a full-time basis by Henry Schaine Halas, as contended in the claimant’s submissions. Rather, he was employed by an agency, My Horizon on a casual basis and on labour hire to Henry Schaine Halas.
On or about 19 December 2019 the claimant travelled overseas. He returned to Australia in February 2020.
In March 2020 the claimant obtained casual employment through another agency, People2People for a short period. It appears this employment did not continue, not because of any matter related to the motor accident but by reason of the Covid-19 lockdowns commencing in or around June 2020.

SUBMISSIONS

The claimant submits he possesses the qualifications and experience to work within the open labour market within the accounting industry or in a role associated with accounting. He submits the insurer has determined he has capacity for part time work as an administration worker but that he is overqualified for the role of administration worker. The claimant submits such role is not suited to him in light of his qualifications and experience in the accounting industry. The claimant submits it is unreasonable to calculate his entitlement to weekly payments under Division 3.3 on the basis of a position which is not suited to him.
The claimant submits that but for the accident he would have continued to work as a senior credit controller and that accordingly, his entitlement to weekly payments should be calculated by reference to his pre-accident earning capacity of $1,222.18 as a senior credit controller. The claimant further submits that but for the accident he had the possibility of earning salary or wage increases and/or performance bonuses which has not been taken into account by the insurer.
The insurer submits the claimant has been assessed as having capacity to work up to 20 hours per week in roles of credit controller/finance clerk, accounts payable and/or administration worker, which are all reasonably suited to him. The insurer therefore submits the claimant is entitled to weekly benefits at the rate of 85% of the difference between the claimant’s net pre-accident earning capacity as a credit controller and his net post-accident earning capacity as a credit controller.

REASONS

Legislation

Section 3.8 of the MAI Act relevantly provides:
Weekly payments after second entitlement period (after week 78)
(1)    A person who is injured as a result of a motor accident and suffers a total or partial loss of earning capacity as a result of the injury is entitled to weekly payments of statutory benefits under this section after the end of the second entitlement period, but only if the person—
(a) is at least 18 years of age (whether or not the person is an earner), or
(b) is under 18 years of age and is an earner.
...
(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 earning capacity—80%, or
(b) in the case of partial loss of earning capacity—85%,
of the difference between the person’s pre-accident earning capacity and the person’s post-accident earning capacity (if any) after the second 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) after the second 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 earning capacity, whichever is the lesser.
(emphasis added)
In the first and second entitlement periods under sections 3.6 and 3.7 the entitlement to weekly benefits is assessed by reference to the injured person’s pre-accident weekly earnings. However, under section 3.8 pre-accident weekly earnings no longer form the basis of an assessment of the extent to which weekly benefits are payable. Instead, under section 3.8 any entitlement to weekly benefits is assessed by reference to pre-accident earning capacity.
Section 3.15 sets out requirements for the claimant to provide evidence as to fitness for work on an ongoing basis.
Pursuant to section 3.16 the insurer can make a decision about the pre-accident earning capacity or post-accident earning capacity of an injured person at any time. For example, if the claimant’s partial capacity to earn increases to a greater or full capacity the insurer can make a new decision about post-accident earning capacity at that time.
Pursuant to Schedule 1, clause 7 of the MAI Act pre-accident earning capacity means:
(1) “Pre-accident earning capacity” of an injured person means the weekly amount a person had the capacity to earn before the motor accident concerned in employment reasonably available to the person in view of the person’s training, skills and experience.
(2) If the amount of an injured person’s pre-accident earning capacity cannot be determined, the amount is deemed to be the amount that is equal to 80% of the average weekly total earnings of adults in full-time employment in New South Wales last published by the Australian Statistician.
(emphasis added)
Relevantly, pursuant to Schedule 1, clause 8:
(1)     “Post-accident earning capacity” of an injured person means—
(a) for the first and second entitlement periods—the weekly amount that the person has the capacity to earn in the employment in which the person was engaged immediately before the motor accident, determined on the basis of the person’s fitness for work in that employment, or
(b) for any period after the second entitlement period—the weekly amount the person has the capacity to earn in any employment reasonably available to the person, determined on the basis of the person’s fitness for work in any such employment.
(2)     …
(3)     A person’s fitness for work after the second entitlement period is to be determined having regard to the following—
(a) the nature of the injury and the likely process of recovery,
(b) treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,
(c) the person’s training, skills and experience,
(d) the age of the person,
(e) any medical certificate provided by the injured person as to the person’s fitness for work.
(4)     The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the employment reasonably available to a person in any period after the second entitlement period.
(emphasis added)
Clause 4.56 of the Motor Accident Guidelines (the Guidelines) sets out the matters to be considered in a determination of post-accident earning capacity, as follows:
When determining employment reasonably available to a claimant at any time after the second entitlement period (from week 79 after the motor accident), the matters to be considered include:
(a) the nature and extent of the claimant’s injuries
(b) the claimant’s age, education, skills and work experience
(c) rehabilitation services that are being or have been provided
(d) the nature of the claimant’s pre-injury employment
(e) the claimant’s place of residence at the time of the motor accident
(f) the details given in the claimant’s Certificate of Fitness
(g) the length of time the claimant has been seeking employment
(h) any other relevant circumstances.
Pursuant to the Supreme Court decision in Allianz Australia Insurance LTD v Jenkins (2020) NSWSC 412, payment of weekly benefits under section 3.8 of the MAI Act is on the basis of net earnings, not gross.

Matters for consideration under Schedule 1, clause 8(3) of the MAI Act and clause 4.56 of the Guidelines

Nature and extent of the claimant’s injuries and likely recovery

The evidence establishes the claimant likely sustained the following injuries as a result of the motor accident:
(a)    cervical spine injury;
(b)    lumbar spine injury, and
(c)    post-traumatic stress disorder and secondary depression (major depressive episode).
The cervical spine injury was assessed as a minor injury and has resolved. Accordingly, it has no bearing on current capacity for work.
The lumbar spine injury was assessed as non-minor. The claimant says he experiences ongoing pain to the right side of the lower back. Treatment for the back injury is conservative in nature. The claimant has self-reported that the back injury is not a significant impediment in so far as his capacity to work is concerned. The claimant has more consistently reported that the main impediment to work is his psychological injury, namely a lack of concentration.
On 25 November 2020 Leudmila Ugov, consultant occupational therapist reported that from a physical perspective the claimant:
(a)    had full movement in the upper body;
(b)    was able to sit for 90 minutes;
(c)    was able to stand for 10 minutes;
(d)    was observed to walk with an even gait and unaided, and
(e)    did not exhibit pain behaviour during movement.
The post-traumatic stress disorder and secondary depression (major depressive episode) has been assessed as a non-minor injury. Medico-legal assessors Dr Friend and Dr Kaplan agree the claimant has some functional limitation with social and recreational activities as a result of his psychological injury.
During the assessment by occupational therapist Ugov on 25 November 2020 the claimant was reported as being able to maintain eye contact whilst communicating and able to concentrate throughout the 90-minute assessment without any signs of cognitive difficulties or fatigue. In contrast to other reports, at that time of this assessment the claimant’s general practitioner, Dr Truong reported that the claimant’s psychological injury was “not affecting his functional capacity as much as his physical [back] pain” and considered the claimant had capacity for some type of work for five hours per day, two days per week with restrictions of sitting for 15 minutes, avoiding bending/twisting and taking breaks as needed.
The evidence suggests the claimant ought to be able to achieve a full or near full recovery from his psychological injury. In a report dated 13 September 2020 Mr Greg Cameron, psychologist opined that the claimant was a “good candidate to make a complete recovery and return to his pre-injury level of functioning”. Mr Cameron recommended a further 10 weekly sessions (spaced forthrightly) of CBT sessions to address the claimant’s psychological symptoms and prepare him to handle any further exacerbations of these psychological symptoms and to prepare him for the cessation of treatment.
On 29 January 2021 Ms Moubarak and Dr Antoun of Medical Assist Network reported that the claimant had been non-responsive to their numerous attempts to contact him. It is noted the claimant had an intention to relocate back to Malaysia and retire in Malaysia. The insurer might make enquiries about the claimant’s movements in and out of Australia over the past 12 months, as this might explain the inability to contact the claimant and the claimant’s lack of response.
In any event, Ms Moubarak and Dr Antoun questioned why the claimant has not been able to return to full time work and could not see any reason why he continued to be certified with no capacity by Dr Truong.
Overall, with proper engagement in treatment the evidence establishes on balance that the claimant ought to achieve a complete recovery in relation to his psychological condition. In relation to physical injury, which is limited to the back, I conclude from the majority of the evidence that the back injury likely does not have any significant impact on the claimant’s capacity to work in sedentary, office-based occupations such as those he worked in pre-accident.

The claimant’s age, education, training, skills and work experience

The claimant is 60 years of age.
Although evidence has not been provided the claimant says he holds a bachelor’s degree in accounting and a diploma in management.
The claimant’s employment history demonstrates he has not realised the full potential of an accounting degree at any time in his career, as he has not practiced as an accountant or held the position of accountant at any time. This suggests having regard to all of the claimant’s circumstances he may not realistically have had the capacity to work full time as an accountant despite holding a degree in that field.
The claimant’s employment history consists of sedentary, office-based roles.
Whilst for the purpose of this claim the claimant contends he worked as a “senior” credit controller or “accountant” at the time of the accident, there is no evidence of this, and it is inconsistent with other statements made by the claimant.
Payslips from My Horizon do not identify the position held by the claimant at Henry Schaine Halas. More tellingly, however, at the time of completing his claim form the claimant did not consider his position to be that of senior credit controller. Rather, he said he worked as an “accounts officer” in his claim form dated 11 November 2019. As this is the most contemporaneous document in the context of the claim and contains the claimant’s own verified account of his employment status at the time of the accident, I consider it to be the most accurate and reliable description of the claimant’s role at the time of the accident and that the subsequent descriptions of “senior credit controller” and “accountant” given in the context of progressing his claim for weekly payments are likely embellished.
The claimant has reported to rehabilitation consultants that his role immediately before the accident involved the following tasks:
(a)    calling customers to provide support and customer service;
(b)    emails, and
(c)    data entry.
These tasks do not suggest the role with Henry SchaIne Halas specifically required a degree in accounting or a diploma in management, or that the role was a senior or upper-level role. In his motor accident claim form dated 11 November 2019 the applicant stated he earn $1,259.50 per week and that his employer was “My Horizon”. Pay slips demonstrate My Horizon is a recruitment agency and that the claimant was effectively on labour hire from My Horizon to Henry Schein Halas on a casual hourly rate of $33 and working an average of 38 hours per week.
Presumably the casual rate for the claimant’s pre-accident employment as an accounts officer is higher than the equivalent fulltime rate as the claimant would not have been entitled to holiday or sick leave pay. Typically, casual rates are higher than full time rates for this reason.
Having regard to the above I conclude on balance that pre-injury the claimant had the capacity to earn $33 per hour on a casual basis (or the fulltime equivalent wage), as an accounts officer or in similar office-based roles.

Treatment and rehabilitation services that are being or have been provided and the potential for further treatment and rehabilitation

The claimant has been provided with rehabilitation services. He has not always engaged fully with these services but in any event, the outcome of the services is that overall, the claimant should be able to return to work.
On 8 December 2020, for example, Dr Wijetunga and Dr Antoun of Medical Assist Network opined that the claimant “should be able to return to full time duties given that the nature of his work is sedentary, but a gradual upgrade could be considered over the next 1 to 2 months, due to the lack of conditioning”.
On 24 February 2021 Benchmark Rehabilitation conducted a Functional Capacity Evaluation and concluded the claimant was fit for sedentary work up to 25 hours per week within the associated limitations and with regular breaks to stand and alter posture.
Benchmark conducted a further assessment on 11 March 2021 and reported on 22 March 2021 that the claimant was suited to the following occupations with capacity to work 10 hours per week:
(a)    credit controller/finance clerk $1,200 per week full time ($31.58 hourly);
(b)    accounts payable $1,122.50 ($29.54 full time), and
(c)    administration worker $1,105 full time ($29.08 per week).
On 18 May 2021 Procure Injury Management assessed the claimant and reported on 26 May 2021 that the claimant was fit for work of four hours per day over four days per week in a position that:
(a)    does not have high level responsibilities or high cognitive demands, such as complex decision making or having to sustain attention in processing unfamiliar information within a set timeframe;
(b)    has duties that are routine in nature where these are undertaken independently or within a small team, and
(c)    has limited requirements to interact directly with customers or the general public.
Procure Injury Management expected capacity to increase over the following months having regard to the claimant continuing to engage in psychological treatment.

On 3 June 2021 Dr Bentivoglio considered the claimant had full capacity to work as an accountant.
On 2 July 2021 Dr Perla reported there was no reason from a physical or psychological position why the claimant could not return to fulltime pre-injury work.
On 10 August 2021 Assoc Prof Kaplan, forensic psychiatrist reported from a psychological perspective that the claimant was fit for suitable employment for 20 hours per week for four weeks before resuming full duties.
The overwhelming majority of the medical evidence is that the claimant is fit to at least return to work in roles similar to those he held prior to the accident for at least 20 hours per week and that over time he ought to be able to resume full duties/fulltime work.
The only exceptions are Dr Truong and Dr Dias. Dr Truong is discussed further below. In relation to Dr Dias, on 21 June 2021 Dr Dias opined the claimant’s “injuries stemming from the subject accident rendered him totally unfit to return to any form of gainful employment on the open labour market. [The claimant’s] chronic symptomatology, reduced functional tolerances and significant psychological comorbidity would preclude him from being able to sustain a return to the workforce in either a parttime or full-time basis in any job role that he will be qualified for by virtue of his previous education, training and experience” and that such incapacity is “likely to be indefinite”. However, this opinion is in stark contrast to the majority of the medical evidence and is not reconcilable with other medical evidence or reported symptomology. As there is a general consensus among the other medical evidence that the claimant has capacity for work and Dr Dias’ opinion is also not reconcilable with the claimant’s self-reported symptomology and capacity, I am not persuaded by Dr Dias’ report.
I conclude on balance that the claimant has capacity to return to his pre-injury work or any of the roles identified by Benchmark, including credit controller for at least 20 hours per week, if not on a fulltime basis.

The nature of the claimant’s pre-injury employment

This is considered above under “The claimant’s age, education, training, skills and work experience”.

The claimant’s place of residence at the time of the motor accident

It is understood the claimant resided in Sydney, Australia at the time of the accident. There is no evidence to suggest the claimant’s place of residence within Australia has any particular impact on an assessment of pre or post-accident earning capacity.

Details in the claimant’s Certificate of Fitness

Certificates of Fitness have been provided by Dr Truong.
On 11 November 2019 and 29 January 2020 Dr Truong certified the claimant fit for pre-injury employment.
However, by mid-2020 Dr Truong inexplicably certified the claimant has having no capacity for work.
In late 2020 Dr Truong certified the claimant has having capacity to work 10 hours per week, but she then altered this to no capacity again by May 2021. In July 2021 Dr Truong certified the claimant as having capacity to work four hours per week.
Dr Truong’s certification of the claimant’s capacity is inconsistent with capacity assessments by other medical and rehabilitation specialists some of whom were perplexed by Dr Truong’s certification of little or no capacity.
On 2 July 2021 Dr Perla discussed the issue with Dr Truong. It transpired from this discussion that Dr Truong had certified the claimant fit for 20 hours per week but that she had agreed with the claimant to certify him unfit when he returned to complain that weekly payments had been reduced by reason of her certification that he had capacity to work. Dr Truong informed Dr Perla that she thought the claimant could undertake 20 hours per week but that she was reluctant to certify him in this regard because of his comments in relation to a decrease in weekly payments from the insurer.
On the basis Dr Truong’s certifications are not reconcilable with other medical and rehabilitation specialist opinion and in light of the concessions she made to Dr Perla the veracity of her certifications is called into question. I therefore conclude the certificates of Dr Truong are unreliable as they likely do not express her expert medical opinion but instead, convey the claimant’s instructions as to what the certification should say in order to maximise benefits payable under the MAI Act. Accordingly, the opinions on capacity expressed by other medical and rehabilitation specialists are to be preferred to the opinion of Dr Truong. As noted above, the consensus among others save for Dr Dias is that the claimant is at least fit to work 20 hours per week in roles similar to those he held prior to the accident.

The length of time the claimant has been seeking employment

I have not been provided with any substantial evidence in relation to the claimant’s attempts to seek employment. The documents available, however, suggest the claimant’s attempts are limited to a Centrelink appointed recruitment agency. There is no evidence that the claimant has expanded his efforts through private recruiters and his request that Dr Truong continue to certify him as unfit for work suggests his efforts have likely been limited. The tone of the claimant’s submissions also suggests he does not wish to apply for roles other than senior accounting roles and has not genuinely considered other suitable roles such as those identified by Benchmark or his pre-injury role as an accounts officer.

Any other relevant circumstances

Section 1.3 sets out the objects of the MAI Act, which relevantly include:
(a) benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and
(b) promoting the recovery and return to work or other activities of those injured in motor accidents.
Section 1.3(4) requires a construction of the MAI Act that would promote the objects of the MAI Act to be preferred to a construction that would not promote those objects.
The second reading speech for the Motor Accident Injury Bill noted the reasons for insurers being able to regularly assess a person’s earning capacity under the MAI Act as being “to ensure that injured people who have the capacity to return to employment stay off work only as long as is necessary to support their recovery”.
The claimant’s submission that the roles he has been certified fit to perform are not suitable to him because he is overqualified is inconsistent with the objects of the MAI Act. In particular, it is inconsistent with the intention of the MAI Act that injured persons with capacity to return to employment stay off work only as long as is necessary to support their recovery. It is inconsistent with the object of promoting a return to work and in turn, keeping premiums affordable.
The claimant’s submission in this regard is also inconsistent with the evidence as to his pre-injury employment capacity. It seems prior to the accident the claimant had no difficulty accepting roles for which on paper it appears he was overqualified but now takes issue for the purpose of a claim for statutory benefits. Having analysed the evidence of the claimant’s pre-accident employment history, including that he worked as an accounts officer on a casual basis performing the tasks of calling customers to provide support and customer services, emails and data entry, it is likely the claimant was overqualified for this and other pre-injury roles. The fact the claimant performed the roles pre-accident is evidence that the claimant has capacity to earn in these roles, regardless of being overqualified and that overqualification is not a relevant consideration in the context of this matter.
If injured persons were only considered to have capacity to work in circumstances where they had capacity for their specific pre-injury employment or a role that requires all of their qualifications, training and skills and not just some of them then the objects of the MAI Act would not be fulfilled, as injured persons would stay off work longer having the benefit of weekly benefits, and premiums would increase.
While it is true that say an administration worker of some type may not have capacity to work as an accountant if they do not hold the relevant qualification such as an accounting degree the reverse is not the same. To use the claimant’s analogy of a solicitor, for example, there are many instances where senior lawyers say in partner roles work in less senior roles such as senior associate because whether by reason of injury, family demands, an inability to cope with the pressures of partnership or some other reason they do not have the capacity to work as a law partner due to the additional demands of such role. If a qualified solicitor has capacity to work as a senior lawyer, it follows that they also have capacity to work in more junior solicitor roles. There are also instances where qualified lawyers work in management, education or other occupations that do not require or fully utilise their legal qualifications. Indeed, there are many legal assistants and legal secretaries who are overqualified on paper because they hold law degrees and lawyers who even work in retail or other industries. This is because they have the transferable skills to work in a range of occupations, including occupations where they may not realise the full potential of, or even use, their law degree or other legal qualifications such as a graduate diploma of legal practice.
Capacity relates primarily to ability to do a particular job, having regard to a range of factors, including skills, training and experience and any ongoing disabilities. I do not accept that a relevant consideration is “overqualification”. If the claimant had pre-accident capacity to work as an accountant, as alleged, he has the capacity (that is, the ability) to also work in less qualified roles such as those identified by Benchmark. This includes administration worker and his pre-injury roles of credit controller and accounts officer. The fact the claimant may possess additional skills, training, qualifications, or experience that is not relevant to or required by the role does not convert capacity into incapacity. Leaving aside other factors such as the impact of injury on capacity, so long as the claimant has sufficient training, skills and experience to perform the role in question he has capacity for that role, even if he possesses additional training, skills and experience. There is no reason why the roles identified by Benchmark would not be reasonably available to the claimant, given he possesses the minimum qualifications, training, skills and experience for such roles and some of them are on par with his pre-injury employment as an accounts officer and before that, a credit controller.
If the claimant were considered to have no capacity because he cannot work in his now desired occupation of accountant, despite having capacity to work in roles identified by Benchmark this would amount to an indulgence in his favour by the motor accident scheme which is inconsistent with the objects of the MAI Act.
In any event, I have reached the conclusion the claimant’s submission that he has no capacity for any of the roles identified by Benchmark because he is overqualified is not borne out by the evidence. As noted above the claimant’s employment history suggests for whatever reason he never realised the full potential of an accounting degree and did not work as an accountant at any time prior to the accident. The evidence also establishes on balance the claimant worked as an accounts officer, not a senior credit controller, immediately prior to the accident. Accordingly, the evidence establishes the claimant likely did not have capacity to work as an accountant prior to the accident in any event given he did not do so at any time since gaining his degree in accounting.
In relation to the claimant’s submission that the possibility that the claimant may have been promoted or received a pay increase or bonuses entitling him to earn more but for the motor accident, I do not consider this a relevant consideration. There is nothing in the relevant sections of the MAI Act or Guidelines that allows an assessment of pre or post-accident capacity to take into account speculative matters such as promotions or pay increases. The meaning of pre-accident earning capacity in the MAI Act is clear in its terms in that it fixes pre-accident capacity by reference to capacity at a fixed point in time, the fixed point being before the accident. This rules out consideration of possible future circumstances. Likely future circumstances but for the accident may be a relevant consideration in a claim for damages for future economic loss. However, they are not a relevant consideration when determining statutory weekly benefits payable under section 3.8 given the definition of pre-accident earning capacity and the formula to be applied under section 3.8.

CONCLUSION

I am satisfied on balance that the evidence, including the claimant’s description of his pre-accident tasks, that the claimant has capacity to engage in any one of the roles identified as suitable to the claimant by Benchmark for at least 20 hours per week.
I am therefore satisfied that the insurer has correctly determined the amount of weekly benefits payable under section 3.8 of the MAI Act by reference to the difference between the claimant’s net earning capacity based on his pre-injury role working fulltime hours and his net earning capacity in the role of an administration worker for at least 20 hours per week.
I would observe the insurer’s assessment is perhaps generous to the claimant, as it is based on capacity to earn at casual rates (typically higher than permanent rates) and assumes the claimant would have worked fulltime hours consistently for 52 weeks every year, taking no leave of any kind and working on public holidays when the office was likely closed. This is unrealistic. It is more likely that the claimant would not have generated this income on a casual basis for more than 46 to 47 weeks per year, taking into account the likelihood of at least four weeks unpaid leave each year and no work on public holidays of which there is an average of seven per year.
The assessment is perhaps also somewhat generous on the basis the insurer has chosen the occupation that earns the least from the occupations of administration worker, credit controller/finance clerk and accounts payable in which the claimant has capacity to work at least 20 hours per week. If an assessment of weekly benefits payable under section 3.8 were based on credit controller, for example, the claimant’s entitlement to weekly benefits would be less, as the average hourly rate for a credit controller is $31.58 compared to $29.08 as an administration worker.
The claimant seeks costs of this merit review. A merit review in relation to payment of weekly benefits under Division 3.3 of the MAI Act is not a regulated matter for the purpose of section 8.10 of the MAI Act and Schedule 1 of the Motor Accident Injuries Regulation. Accordingly, no costs are allowed.
The reviewable decision is:
(a) affirmed.
The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is Nil.

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 8

10 February 2022