Yin v Allianz Insurance Australia Limited
[2022] NSWPICMR 5
•24 January 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Yin v Allianz Insurance Australia Limited [2022] NSWPICMR 5 |
| CLAIMANT: | Jiapeng Yin |
| INSURER: | Allianz Insurance Australia Limited |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 24 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017; meaning of earner schedule 1, clause 2; whether the claimant is an earner; burden of proof; Held- insufficient evidence to establish earner; section 6.24 duty to co-operate; failure to co-operate; the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | 1. The reviewable decision is: (a) affirmed. 2. Should the claimant provide further information and/or documents to the insurer to substantiate his claim that he is an earner the insurer may conduct a further review of the matter based on such further information and/or documents. |
BACKGROUND
There is a dispute between Jiapeng Yin (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, specifically whether the claimant is an earner and therefore entitled to weekly benefits.
The claimant was involved in a motor accident on 24 August 2021.
The claimant is legally represented. On 8 September 2021 the claimant’s legal representative lodged an application for statutory benefits on behalf of the claimant.
On 29 September 2021 the insurer determined that the claimant was not an earner in accordance with clause 2 of schedule 1 of the MAI Act and therefore was not entitled to weekly benefits under section 3.6 of the MAI Act.
The claimant applied for an internal review of the 29 September 2021 decision that he was not an earner.
By internal review decision dated 9 November 2021 the insurer maintained their decision that the claimant was not an earner.
The claimant has applied for a merit review of the internal review decision of 9 November 2021.
SUBMISSIONS
The claimant has submitted the following documents in support of his application for a merit review:
(a) His application for statutory benefits in which he provides limited employment details.
(b) His bank statements for the period 1 July 2020 to 30 June 2021.
(c) A completed tax file declaration form dated 1 October 2021.
Despite being legally represented the claimant’s submissions are limited to a statement in his merit review application that he disagrees with the insurer’s decision that he is not an earner. The claimant does not state the basis upon which he disagrees with the decision or how he says the documents he has provided establish he is an earner.
The insurer submits there is insufficient evidence upon which one could be satisfied the claimant is an earner in accordance with the MAI Act. The insurer submits the bank records alone are insufficient as there are no source documents that identify where payments were derived from.
REASONS
The definition of earner for the purpose of the MAI Act is set out in clause 2 of Schedule 1 as follows:
“Meaning of "earner"
A person who is injured as a result of a motor accident is an
"earner" if the person is at least 15 years of age and who--
(a) was employed or self-employed (whether or not full-time)--
(i) at any time during the 8 weeks immediately preceding the motor accident, or
(ii) during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident, or
(iii) during a period or periods equal to at least 26 weeks during the 2 years immediately preceding the motor accident,
and, at the date of the motor accident, had not retired permanently from all employment, or
(b) before the motor accident, had entered into an arrangement (whether or not an enforceable contract)--
(i) with an employer or other person to undertake employment, or
(ii) to commence business as a self-employed person,
at a particular time and place, or
(c) was, immediately before the motor accident, receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.”
The issue for consideration is not one of statutory interpretation but whether there is sufficient evidence to establish the claimant is an earner within the meaning in clause 2, Schedule 1.
The onus is on the claimant to provide sufficient evidence to establish he is an earner.
Pursuant to section 6.24 of the MAI Act the claimant has a duty to fully co-operate with the insurer. Section 6.24 relevantly provides:
“Duty of claimant to co-operate with other party
(1) A claimant must co-operate fully in respect of the claim with the other party to the claim (being the insurer on the claim or, if there is no insurer, the person against whom the claim is made) for the purpose of giving the other party sufficient information--
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim, may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement in the case of a claim for damages.
(2) In particular, the claimant must comply with any reasonable request by the other party--
(a) to furnish specified information (in addition to the information furnished in the claim) or to produce specified documents or records, or
(b) to provide a photograph of and evidence as to the identity of the claimant.
(3) The reasonableness of a request may be assessed having regard to criteria including the following--
(a) the amount of time the claimant needs to comply with the request,
(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,
(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,
(d) how onerous it will be for the claimant to comply with the request,
(e) whether the information is privileged,
(f) whether the information sought is sufficiently specified,
(g) the time of the request and whether the claimant will be delayed in commencing proceedings for damages by complying with the request.
(4) ....”
The claimant has not fully co-operated with the insurer by reason of the following:
(a) His failure to properly and fully complete the employer details section in his application for statutory benefits. The claimant did not provide any contact details for his alleged employer, as requested in the application form.
(b) His failure to provide the information reasonably requested from him by the insurer by emails from the insurer dated 4 and 8 November 2021.
The obligation on the claimant to cooperate under section 6.24 is mandatory. Where a claimant fails to provide sufficient documents and/or fails to provide relevant documents requested by the insurer they potentially do so at their own peril given they bear the onus of establishing a valid claim for statutory benefits. As stated in section 6.24(1)(a) the claimant must provide sufficient information to the insurer for the insurer “to be satisfied as to the validity of the claim”. In this case, the information needs to be sufficient to be satisfied the claimant is an earner for the purpose of the MAI Act.
As merit reviewer my role is to determine what is the correct and preferable decision based on the material before me. The parties may provide further documents or information for the purpose of a merit review. Despite legal representation the claimant did not take the opportunity to provide the outstanding information requested by the insurer. The claimant did not provide any other information or documents for the merit review and has not provided any explanation for the absence of documents or further information about his employment.
Accordingly, the information and documents for consideration in this merit review remain limited to the information provided in the application for statutory benefits, the claimant’s limited bank records, and a tax file number declaration form completed on 1 October 2021.
In considering the available evidence I note:
(a) Evidence of possible employment is limited to the claimant’s statement in the application for statutory benefits that he worked full time as a gyprocker for YRAN Pty Ltd earning $1,880 and bank statements showing transfers into the claimant’s account with the entry “transfer from HENG WANG salary”.
(b) The claimant has not offered any contact details for his alleged employer, YRAN Pty Ltd.
(c) There are inconsistencies in the claimant’s evidence, including that the alleged employer identified in the application for statutory benefits (YRAN) does not match the name (Heng Wang) in the description for bank transfers relied upon by the claimant as payment of wages.
(d) There is no evidence to support the contention the claimant earned $1,880 per week up until the accident on 24 August 2021 as the bank records cease in June 2021.
(e) The tax file number declaration is of no assistance as it was completed after the accident and does not identify any employer. These forms are readily available to any person to complete. There is no evidence that the applicant’s form was ever given to any employer. Given it was not completed until after the accident it is presumably unrelated to any pre-accident employment.
(f) The claimant has failed to respond to the insurer’s request for further information about his alleged employment. The insurer’s request is not unreasonable or onerous.
(g) The claimant has not offered any explanation for his failure to respond to the insurer’s request for further information. Nor has he offered any explanation for providing such limited information.
(h) If the claimant was employed by a company named YRAN Pty Limited (as stated in his application for statutory benefits) and had a tax file number (as suggested by the tax file number declaration form) there would seem to be no reason why he could not provide the usual records of employment such as payslips, PAYG certificates, tax returns and/or notices of assessment issued by the Australian Taxation Office (ATO).
(i) The employment is said to be as recent as mid-2021. The application for statutory benefits was submitted on 8 September 2021. The claimant ought to be able to provide employment records for such recent period. Even if the claimant did not keep any records himself, they ought to be available to him from his accountant if he had one or through his MyGov account or a request to the ATO. Given the records sought by the insurer are for a recent period the claimant ought to be able to also request them from his employer.
(j) Given the ease at which such recent records ought to be available to the claimant to provide to the insurer it is difficult to accept there may be a satisfactory explanation for the claimant’s failure to provide same.
The claimant must establish on the balance of probabilities that he was an earner within the meaning of earner in clause 2 of Schedule 1. Having regard to the above consideration of the state of the evidence I cannot be comfortably satisfied on the material before me that the claimant was employed or self-employed at any relevant time prior to the motor accident pursuant to clause 2 of Schedule 1. Rather, the claimant’s pre-accident employment, if any, is unknown on the current material and accordingly, the claimant has failed to discharge his burden of proof.
The insurer has queried whether the claimant also has an issue in relation to pre-accident weekly earnings (PAWE). That issue is academic in circumstances where the claimant has failed to establish that he is an earner. However, for completeness I note:
(a) The evidence before me is insufficient to determine the claimant’s PAWE in the relevant pre-accident period.
(b) Pursuant to section 3.6(5) of the MAI Act, if a weekly payment of statutory benefits is payable but further information is required to determine the amount of the payment, interim payments are to be made in accordance with the Motor Accident Guidelines (the Guidelines) until the correct amount of the payment can be determined and paid.
(c) Pursuant to clause 4.45 of the Guidelines the interim payment in section 3.6(5) is calculated at 12.5% of the maximum weekly statutory benefits amount set out in section 3.9 unless the claimant nominates a lower amount.
(d) The availability of an interim payment is only in respect of the first entitlement period under section 3.6. There is no entitlement to interim payments for subsequent periods under sections 3.7 or 3.8.
(e) Whilst an interim payment may be available under section 3.6, if there is insufficient evidence to calculate PAWE, proof that the claimant is an earner remains the first step and prerequisite to any payments under section 3.6 including interim payments.
(f) On the current material the claimant has failed to establish the first step and prerequisite for section 3.6 that he is an earner and therefore entitled to payments under section 3.6.
CONCLUSION
The reviewable decision is:
(a) affirmed.
Should the claimant provide further information and/or documents to the insurer to substantiate his claim that he is an earner the insurer may conduct a further review of the matter based on such further information and/or documents.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· The application, reply and supporting documentation;
· Motor Accident Injuries Act 2017 (NSW);
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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