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AAV v Allianz Australia Insurance Ltd [2018] NSWDRS MR 022

Overview

Jurisdiction: Merit Review

Catchwords: Statutory benefits - Weekly payments - amount of pre-accident weekly earnings - pre-accident weekly earnings - PAWE - self employed - business expenses

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 7.13, Division 3.3, Schedule 1 cl 4, Schedule 2 cl 1
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.194

Parties:

  • AAV – claimant
  • Allianz Australia Insurance Limited - insurer

Disclaimer: This decision has been edited to remove unique personal identification information including the name of the claimant.

Merit review certificate

View the certificate

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

The Claim
Claimant AAV
InsurerAllianz Australia Insurance Limited
Claim Number 75C000031
The Reviewable Decision
Reviewable decision‐makerSarah Hoy
Date of Reviewable decision29 March 2018
Nature of Reviewable decisionThe amount of pre-accident weekly earnings
The Merit Review
Our Reference10040476
Merit ReviewerJeremy Lum
Date of this Certificate10 September 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 (the Act).

The merit review matter is about the amount of weekly payments of statutory benefits that is payable to AAV under Division 3.3 (weekly payments of statutory benefits to injured persons).

The determination of the Merit Review is as follows:

  • The reviewable decision of the Insurer is affirmed.
  • Jeremy Lum
    Dispute Resolution Service Merit Reviewer

    Reasons

    Background

    1. AAV was injured in a motor accident on 6 December 2017.

    2. On 29 March 2018, the Insurer wrote to AAV and advised that he was entitled to weekly payments of statutory benefits, which would be calculated on the basis that his pre-accident weekly earnings (PAWE) is equal to $227.58.  That decision covered the weekly payments of statutory benefits payable by the Insurer to AAV from the date of accident.

    3. AAV applied for an internal review by the Insurer.  On 26 June 2018, the Insurer gave AAV written notice that its original decision should be affirmed.  AAV received this decision on 27 June 2018.

    4. AAV disputes the Insurer’s decision and lodged an application for merit review with the Dispute Resolution Service on 24 July 2018.  

    5. I am satisfied the application was made within 28 days of AAV receiving the Insurer’s internal review decision in accordance with clause 7.194 of the Motor Accident Guidelines.

    Documents and information

    6. I have considered the submissions and documents provided in the application and reply.

    Submissions

    AAV

    7. In the application for Merit Review, AAV, through his solicitor, submits that the Insurer’s calculation of his PAWE is incorrect.

    8. AAV sets out the basis upon which is PAWE should have been calculated as, for the period from 5 December 2016 to 23 July 2017.

    9. In addition, AAV contends that his 2017-18 tax return will reflect the corrected position and intends to amend the Business Activity Statement (BAS) for the quarter ended 31 December 2017.

    The Insurer

    10. In reply, the Insurer relies on the reasons provided in its original decision and decision on internal review.

    Legislation

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

    • Motor Accident Injuries Act 2017 (NSW) (the Act)
    • Motor Accident Guidelines effective 30 April 2018 (the Guidelines)
    • Motor Accident Injuries Regulation 2017 (NSW) (the Regulation)

    Pre-accident weekly earnings

    12. Clause 4(1) of Schedule 1 of the Act defines “PAWE” as:

    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.

    13. There is no dispute that AAV is an earner and the period of 12 months immediately before the day on which the motor accident occurred is 6 December 2016 to 5 December 2017 (365 days).  

    14. AAV has provided a copy of his 2016-17 tax return, which shows that he received a gross income of $19,239.00 from Avilo Transport Pty Ltd.  Although I do not have every weekly payslip for the 2016-17 financial year, the four payslips for the period 26.06.2017 to 23.7.2017 indicate an annual salary of $18,876.00.  As AAV’s 2016-17 tax return indicates a higher gross income than what was specified on his payslips as his annual salary, it is fair in my view to infer that AAV was employed for at least a year (and possibly longer) by Avilo Transport Pty Ltd (Avilo).

    15. AAV, in his submissions, states that his gross weekly earnings should be the figure in his 2016-17 tax return $19,239.00 divided by 52 weeks to give $369.98.  Although I can see how AAV has arrived at this conclusion, the 4 weekly payslips do not support this calculation.  These payslips indicate that he receives an annual salary of $18,876.00 and he consistently received $363.00 per week.  $18,876.00 divided by $363.00 equals 52.  It is therefore, in my view, more likely than not that AAV’s average weekly gross earnings is $363.00 per week.

    16. AAV submits that the earnings for the period 1 July 2017 to 23 July 2017 should be added to the earnings from the precious period 5 December 2016 to 30 June 2017.  I note that the Insurer has largely accounted for this period in its calculation.  The Insurer has calculated AAV’s gross earnings for the period from 6 December 2016 to 20 July 2017.  I do not agree that the extra 3 days should be included as they fall within the weekend period.  Moreover, the payslip dated 7 July 2017 included the period from 26 June 2017 to 30 June 2017 that was already accounted for by the Insurer and to include it again may amount to a degree of doubling up.

    17. I therefore find for the period 6 December 2016 to 20 July 2017 as follows:

    Number of weeks      32.6
    Weekly earnings       $363.00
    Earnings for period   $11,834.00

    18. It is not in dispute that AAV did not work in any employment in the period from 24 July 2017 to 24 September 2017.

    19. He commenced self-employment on 25 September 2017, however I accept the Insurer’s analysis of the relevant BAS which indicate that expenditure of the business exceeded sales and resulted in a trading loss for the quarter ended 31 December 2017.  In other words, there were no gross earnings in this period because AAV’s business expenses exceeded his sales.

    20. On the present information before me, I calculate AAV’s PAWE as follows:

    $11,834.00 divided by 52 weeks equals $227.58.

    21. I therefore find that AAV’s PAWE is $227.58 per week.

    22. I note that I do not have a copy of AAV’s 2017-18 tax return, which would include the period of earnings from 1 July 2017 to 5 December 2017.  This period is part of the 12 months immediately before the accident date which is relevant to the definition of PAWE.  I would therefore accept AAV’s submissions insofar as the 2017-18 tax return may provide additional relevant information on whether he received earnings in this period.  

    23. I note that the Insurer has recalculated AAV’s PAWE on previous occasions and may do so again upon receipt of his 2017-18 tax return.

    Determination

    My determination of the Merit Review is as follows:

  • The reviewable decision of the Insurer is affirmed.
  • Jeremy Lum
    Dispute Resolution Service Merit Reviewer