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AAC v NRMA Insurance [2018] NSWDRS MR 003 (formerly Merit Review MA02/18)

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerits Review
CatchwordsWeekly benefits – Statutory benefits – Pre accident weekly earnings – PAWE – change in earning circumstances -
LegislationCited  Motor Accident Injuries Act 2017 (NSW) ss Schedule 2(1), Schedule 1 subcl 3 & 4, 7.13;  
Motor Accident Guidelines effective from 30 April 2018  
Motor Accident Injuries Regulation 2017 (NSW)
Cases CitedN/A
Text CitedN/A
PartiesAAC – Claimant  
NRMA Insurance Ltd – Insurer
DisclaimerThis decision has been edited to remove Unique Personal Identification information including the name of the Claimant.

Merit Review Certificate

Merit Review Certificate

Merit Review Certificate

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

The Claim
Claimant: AAC
Insurer: NRMA Insurance Limited
Claim Number: NWRTP180022601
The Reviewable Decision
Reviewable decision-maker: Rhys Wilson
Date of Reviewable decision: 12 April 2018
Nature of Reviewable decision: The amount of pre-accident weekly earnings
The Merit Review
Our Reference: 10031199
Merit Reviewer: Margot Undercliffe
Date of Merit Review Certificate: 22 June 2018

Merit Reviewer’s Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(a)of the Motor Accident Injuries Act 2017, about weekly payments of statutory benefits to injured persons.

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed
  • A brief statement of my reasons for this determination are attached to this certificate.

    Margot Undercliffe

    Merit Reviewer, Dispute Resolution Service

    Merit Reviewer’s Reasons for Determination

    Background

    1. AAC is employed as a canteen manager. She was injured in a motor vehicle accident on 28 January 2018. The insurer accepted her claim for weekly payments of statutory benefits under the Motor Accidents Injuries Act 2017 (“the Act”).

    2. The dispute is about the calculation of AAC’s pre-accident weekly earnings (“PAWE”). The amount of PAWE affects the amount of weekly payments of statutory benefits.

    3. On 7 March 2018, the insurer decided that the amount of AAC’s PAWE was $1,036.63. AAC applied for an internal review and submitted that her PAWE should be increased to include an additional amount of $25.10 per hour for 12 hours per week. On internal review dated 12 April 2018, AAC’s PAWE was increased to $1,149.61 due to a miscalculation in AAC’s PAWE.

    4. AAC applied for a merit review by the Dispute Resolution Service dated 10 May 2018.

    Documents and Information

    5. I have considered the documents provided in the application and the reply and any further information provided by the parties.

    Submissions

    6. AAC submits:

    a. She entered into an agreement with her employer in November 2017, which was before the date of the subject motor vehicle accident;

    b. She was not earning anything the day prior to her accident;

    c. Her income was to include an additional amount of $25.10 per hour for 12 hours per week from 29 January 2018 (the day following the accident) and onwards but for the accident;

    d. The intention of the statute is to make up for her economic loss caused due to the accident by way of payment of statutory benefits;

    e. Her wage loss is a direct consequence of the accident;

    f. She was contracted to be on higher wages in November 2017 and would have been earning the extra income if for any reason she had been called in to work;

    g. It is unfair and prejudicial to her that she is not paid the amount agreed upon, and

    h. Her circumstances should be interpreted in a way to effect the fair and equitable purpose and intention of the statute.

    7. The insurer submits:

    a. Consideration must be given to whether AAC falls under sub-clauses 4(2)(b) and (3) of Schedule 1 of the Act;

    b. Based on the information the insurer has, AAC entered into an agreement for a significant change in her entitlements to earn more on a weekly basis and this agreement occurred in the 12 months prior to the subject accident;

    c. However, AAC does not meet the requirements of sub-clause 4(2)(b) for an injured person to be entitled to additional PAWE on the basis of being entitled to additional earnings, it must be demonstrated that she had received the earnings prior to the subject accident, and

    d. The email from her employer dated 3 April 2018 shows that she was to commence the additional hours on 29 January 2018, therefore she became entitled to the additional earnings on the day post-accident.

    8. AAC made further submissions on 23 May 2018 as follows:

    a. The insurer has placed an incorrect emphasis on earnings received, whereas in fact sub- clause 4(3) of Schedule 1 makes reference to this sub-clause “if, during the 12 months immediately before the date of the motor accident … a significant change in his or her earning circumstances …, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred”;

    b. This is specifically relevant in terms where she had come to an agreement prior to the date of the accident with her employer that after the date of the accident she would have worked increased hours, and

    c. Becoming entitled to earn is the relevant section that should be applicable and on this basis, her earnings should be adjusted to be at the higher rate as at 29 January 2018.

    Legislation

    9. In conducting my review I have considered the following legislation and guidelines:

    a. Motor Accident Injuries Act 2017 (NSW) (“the Act”)

    b. Motor Accident Guidelines effective from 30 April 2018 (“the Guidelines”)

    c. Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

    Reasons

    Pre-accident weekly earnings

    10. PAWE is defined by clause 4 of Schedule 1 of the Act. Sub-clauses 1 to 3 states:

    4 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 (other than a self-employed person) 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.

    11. AAC submits that as she was contracted for higher wages by an agreement in November 2017 to start on the day after the subject accident (29 January 2018), then sub-clause 4(3) should apply.

    12. Sub-clause 4(2)(b) commences with the words “if subclause (3) applies”. Therefore, once an earner falls within sub-clause 4(3), sub-clause 4(2)(b) also becomes applicable, and the earner must also meet the requirements of that sub-clause.

    13. Sub-clause 4(2)(b) requires that “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” [my emphasis].

    14. The ordinary and grammatical sense of the words in this provision are that the earner’s earnings must be received by the earner immediately before the day of the motor accident. AAC had not “received” any earnings for the additional hours due to commence on 29 January 2018. Although AAC submits that the provision should be interpreted in a way to affect a fair and equitable purpose and the intentions of the statute, the interpretation of the provision must be within the confines of the actual language employed.

    15. I consider that the insurer has applied sub-clauses 4(2)(b) and (3) correctly.

    16. AAC was not to commence the additional hours until the day after the subject accident, therefore, she had not received the gross earnings immediately before the day of the motor accident. As none of the exceptions in sub-clause 4(2) apply, AAC’s PAWE is calculated on the basis of the 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 (Schedule 1, sub-clause 4(1)).

    17. The insurer’s decision of 12 April 2018 is affirmed.

    Margot Undercliffe
    Merit Reviewer, Dispute Resolution Service