SIRA Logo

ABF v NRMA Insurance [2018] NSWDRS MR 032

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsPre-accident weekly earnings – PAWE – weekly benefits – business partnership – method of assessing PAWE
Legislation cited                    Motor Accidents Injury Act (NSW) ss 7.11, 7.13(4), Division 3.3, Schedule 2(1)(a)
Motor Accident Guidelines effective 13 July 2018
Motor Accident Injuries Regulation 2017 (NSW)
Cases cited

N/A

Text citedN/A
Parties ABF - Claimant
IAG t/as NRMA - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification 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 ABF
Insurer IAG t/as NRMA
Claim Number NWRTP180087301
The Reviewable Decision
Reviewable decision-makerKaren Burgoyne, IAG
Date of Reviewable decision                                         24 July 2018
Nature of Reviewable decision Quantum of pre-accident weekly earnings (PAWE)
The Merit Review
Our Reference 10042518
Merit Reviewer Terence O'Riain
Date of Merit Review Certificate 14 November 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 varied as follows:
o  the quantum of PAWE is assessed at $614 per week for the period claimed
  • Effective Date: This determination takes effect on 14 November 2018.
  • Legal Costs: Not sought

A brief statement of my reasons for this determination are attached to this certificate.

Terence O’Riain
Merit Reviewer, Dispute Resolution Service
14 November 2018

Merit Reviewer's reasons for determination

Background

1.   There is a dispute between ABF and the Insurer in respect to quantum of statutory benefits payable under Division 3.3 (weekly payments of statutory benefits to injured persons) of the Motor Accidents Injuries Act 2017 (“the Act”).

2.   ABF was injured on 27 April 2018, a claim was duly made and accepted by the Insurer in a Liability notice—benefits up to 26 weeks accepting liability up to 26 October 2018.

3.   The Insurer assessed ABF’s PAWE from her business held in partnership with MT at $361 per week, which was communicated to ABF in an email on 24 July 2018. ABF asserted that her PAWE was $1,260 for the period claimed.

4.   ABF’s husband MT applied for internal review of the Insurer’s decision on 31 July 2018 and also filed an application with DRS for Merit Review. The Insurer disputed the claimant’s entitlement to obtain a Merit Review as the internal review was not completed pursuant to s7.11 of the Act. However, at this point the Insurer has completed an internal review and the Merit Review may proceed.

5.   MT has been authorised by the Claimant to represent her interests in this Merit Review.

6.   A teleconference was set down 24 October 2018 and did not proceed due to MT not attending. A direction was made that the Insurer produce the Insurer’s accountant’s report assessing the Claimant’s PAWE for the internal review to the Claimant and myself for review and advice. The teleconference was adjourned to 31 October 2018, which both parties attended.

7.   At the teleconference on 31 October 2018 I made the following directions:

a.   MT to refer the NRMA review decision 14 September 2018 plus the Moser & Bland assessment supporting that decision to be put to the claimant's business's accountants for advice.

b.   Any written response from those accountants, including the earliest assessment plus any further submissions to be provided by 7 November 2018.

c.  My decision to be produced by 14 November 2018.

8.   I received the further submissions from the Claimant on 13 November 2018 and these are considered in my decision.

9.   I am advised by both parties that the Claimant has returned to her pre injury level of capacity. The Claimant received 8 weeks of her weekly statutory benefits at the rate  assessed in the internal review. There are no continuing payments.

Documents and information

10.   I have considered the documents provided in the application and the reply and any further information provided by the parties. In particular I have considered the letter from the Claimant’s accountant dated 15 May 2018, Moser & Bland assessment of the Claimant’s PAWE in an email dated 12 September 2018, the Insurer’s internal review and certificate of determination dated 14 September 2018 and emails received from MT 13 November 2018 regarding advice received from the Claimant’s accountant addressing the internal review outcome.

Submissions

11.  The Claimant’s submissions are largely set out in the background above. Further, the Claimant’s representative MT stated in a call to the Merit Reviewer on 14 November 2018 that based on the advice received from the business’s accountant that the PAWE assessed in the Insurer’s Internal Review is accepted as correct.

12.  The insurer’s submissions are set out in the background above and the document R1 submissions by NRMA dated 24 August 2018.

Legislation

13.  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 13 July 2018 (“the Guidelines”)

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

Reasons

14.  I have read the material regarding the assessment of the Claimant’s PAWE. It, in my view correctly assesses the net income from the business.

15.  The Claimant via her representative MT concedes that the method set out in the Moser & Bland assessment 12 September 2018, which is set out in the internal review decision 14 September 2018 is the correct method for the purpose of assessing PAWE.

Legal Costs

16.   The Claimant has not sought costs.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is varied as follows:
o  PAWE is assessed at $614 per week.
  • Effective Date: This determination takes effect on 14 November 2018.
  • Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $nil inclusive of GST

Terence O’Riain
Merit Reviewer, Dispute Resolution Service
14 November 2018