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ACE v AAI Limited trading as GIO [2018] NSWDRS MR 057

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsPre-accident weekly earnings – PAWE – weekly payments of statutory benefits – earner – sub-contractor – individual tax return – legal costs – legal disability
Legislation citedMotor Accidents Injury Act (NSW) ss 1.3, 3.6, 3.7, 7.13, 8.10(3) & (4), Schedule 1 cl 4, Schedule 2(1)(a)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 30 April 2018 cl 7.192
Cases citedN/A
Text citedN/A
Parties ACE - Claimant
AAI Limited trading as GIO - 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 ACE
Insurer AAI Limited trading as GIO
Claim Number Y05739800001-01
The Reviewable Decision
Reviewable decision‐maker Tim Virgona
Date of Reviewable decision 31 July 2018
Nature of Reviewable decision The amount of Pre-Accident Weekly Earnings
The Merit Review
Our Reference 10056293
Merit Reviewer Tajan Baba
Date of Merit Review Certificate 7 December 2018

Determination

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

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed
o  The amount of ACE’s Pre-Accident Weekly Earnings is $1,531.36.
  • Effective Date: 15 July 2018

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

Tajan Baba
Merit Reviewer, Dispute Resolution Service

Reasons for determination

Background

1.  ACE was injured in a motor vehicle accident on 14 July 2018. He was employed as a sub-contractor with XXXX Concrete Pty Limited at the time of the accident.

2.  The Insurer accepted ACE’s claim under the Motor Accidents Injuries Act 2017 (“the Act”). On 21 August 2018, it made a decision in relation to the weekly payments of statutory benefits ACE was entitled to. This decision required the Insurer to determine the amount of ACE’s Pre-Accident Weekly Earnings (“PAWE”), which the Insurer determined at $943.43.

3.  ACE sought an internal review of the Insurer’s determination of the amount of his PAWE. On internal review dated 3 September 2018, the insurer determined ACE’s PAWE to be $1,531.36. ACE has advised he received notice of the internal review on the same date.

4.  ACE did not agree with the Insurer’s decision on internal review and lodged an application for merit review, dated 11 October 2018, with the Dispute Resolution Service (“DRS”) on 17 October 2018. The application was made out of time. It was accepted by DRS under section 1.3 of the Act and clause 7.192 of the Guidelines.

5.  In its reply to the application, the Insurer offered to re-determine ACE’s PAWE as new information had been provided by ACE’s legal representatives following the internal review. The Insurer requested that the application to DRS be “rejected and remitted” to the Insurer for redetermination of ACE’s PAWE.

6.  ACE’s legal representatives responded on 13 November 2018, advising that ACE was willing to accept the Insurer’s offer to re-determine his PAWE on the basis that legal costs were recoverable for the application to DRS.

7.  The Merit Reviewer held a teleconference on 28 November 2018 in relation to the further proceedings of the matter and the request for costs (Teleconference Report dated 4 December 2018). ACE’s legal representatives decided to proceed with the application for merit review in respect to PAWE.

Documents and information

8.  I have considered the documents provided in the application and the reply and any further information provided and exchanged between the parties.

Submissions

9.  ACE’s legal representatives, Paramount Lawyers, make a number of submissions in the application for merit review in respect to the application being lodged late and the following submissions relating to the determination of PAWE:

a.  Prior to the internal review decision, ACE forwarded recent invoices to the Insurer and inquired as to whether the Insurer would require any further invoices, to which ACE did not receive a response.

b.  Nevertheless, ACE possesses all invoices for the prior period as evidence of his earnings.

c.  The Insurer noted that the most reliable evidence was an email from ACE’s employer which provided a breakdown of payments made to ACE. ACE submits that the Insurer should have considered all invoices that ACE was willing and able to provide prior to the internal review decision.

d.  The Insurer relied on an amended individual tax return as it did not have 12 months of invoices but the invoices covering the 12 month period before the injury indicate he earned in excess of $2,000 per week on a regular basis.

e.  The current weekly statutory benefit payable should increase to correspond with his pre-accident earnings.

10.  In its reply to ACE’s application, the Insurer makes a number of submissions in relation to the late application matter and the following submissions in respect to its determination of PAWE:

a.  It is noted that the invoices covering the 12 month period before the injury was not available to the claims team during the internal review.

b.  The decision was made with regards to the available evidence and in line with Schedule 1, Part 4 of the Act (How PAWE is to be calculated) and section 3.6 of the Act (calculating statutory benefits in the first entitlement period).

Legislation

11.   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”)

12.  PAWE is defined under clause 4 of Schedule 1 of the Act. Subclause (1) of clause 4 provides:

"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.  The Insurer accepts that ACE is “an earner who is injured as a result of a motor accident”. Also, none of the exceptions under subclause (2) apply in ACE’s case. The issue that is in dispute between the parties is “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”.

14.  The motor accident ACE was injured in occurred on 14 July 2018. ACE was employed as a subcontractor with XXXX Concrete Pty Limited at the time. There is a letter from XXXX Concrete before me dated 14 December 2017. It states:

This letter is to verify that ACE is employed by XXXX Concrete P/L as a sub-contractor. ACE has on going work for the next two years and earns an average payment of $1800 to $2500 per week.

15.   also have before me an image of one page of an ‘Amended Individual tax return 2018’ form. This form indicates that ACE’s total income for the 2018 financial year was

$49,154.00. ACE was injured two weeks after the financial year but this form provides a guidance that the weekly average of ACE’s gross earnings in a 12 month period shortly before the injury was approximately $947.23 ($49,256 ÷ 52).

16.  Following the motor accident, ACE completed a claim form for the Insurer, dated 17 July 2018. On this form, he advised that his earnings at the time of the accident was $2,500.00 with XXXX Concrete.

17.  There is also an email from a representative of XXXX Concrete to ACE dated 20 July 2018 providing a breakdown of ACE’s earnings in the 2018 financial year. When deducting the superannuation payments that were made, the email indicates that ACE earned a total of $79,630.98 in that financial year, from “invoice payment” and “XXXX wages”.

18.  The Insurer relied on the information provided in this email to determine ACE’s PAWE to be in the amount of $1,531.36.

19.  ACE submits that his average earnings in the 12 months before the motor accident was “in excess of $2,000 per week on a regular basis”. He has submitted weekly invoices he issued to XXXX Concrete and corresponding weekly bank transfer confirmation printouts for payment of these invoices from XXXX Concrete to him (“the invoices”).

20.  On review of the information before me, I accept ACE’s submissions that the invoices support that there were weeks in the 12 months before the motor accident that he earned in excess of $2,000.00. A number of the invoices before me are however illegible and more significantly, I do not have invoices covering a 12 month period before the injury. The invoices before me dated pre the accident, are dated from 10 October 2017 to 11 July 2018. This only covers a 9 month period.

21.  When determining ACE’s PAWE under clause 4 of Schedule 1 of the Act, I am required to determine the average of ACE’s earnings in the 12 months immediately before the day on which the motor accident occurred”. To do this on the information before me, I prefer to rely on the email from XXXX Concrete, dated 20 July 2018, providing the breakdown of ACE’s earnings in the 2018 financial year (“the email”) and the weekly average of $1,531.36 this email provides.

22.  While the email does not include a 2 week period “immediately before the day on which the motor accident occurred” (motor accident was on 14 July 2018 and the financial year ended on 30 June 2018), I consider this a more accurate reflection of the average of ACE’s earnings in the 12 month period before the motor accident occurred than the invoices which exclude a period of 3 months.

23.  Further, I note that the email appears to be based in any event on the invoices that payments were made to ACE on. I consider the email to be the most reliable information in relation to ACE’s earnings in the 12 months before the accident. The letter from XXXX Concrete dated 14 December 2017 indicates a higher average however is not specific and was from 7 months before the injury. The claim form also indicates a significantly higher average however it is not supported by the weight of the information before me. The amended tax return indicates significantly lower average weekly earnings which is as well not supported by the weight of the information before me.

24.  I am satisfied that $1,531.36 is the correct and preferable decision in respect to the weekly average of the gross earnings received by ACE during the 12 months immediately before the day on which the motor accident occurred.

25.  I find that ACE’s PAWE is $1,531.36.

Legal costs

26.   In submissions dated 13 November 2018, ACE requested that “legal costs are awarded” in respect to the application to DRS. I note that the Act provides at section 8.10(3) that necessary and reasonable costs are recoverable in respect to disputes in connection with statutory benefits only if it is permitted by the Regulations or DRS. Subsection (4) of 8.10 provides that DRS can permit legal costs if the claimant is under a legal disability or there are exceptional circumstances to justify payment of legal costs.

27.  As discussed at the teleconference with the parties on 28 November 2018 (Teleconference Report dated 4 December 2018), the Regulations do not permit costs for disputes in respect to the amount of PAWE, ACE is not under a legal disability and I am not satisfied there are exceptional circumstances to justify payment of legal costs.

28.  I find that legal costs are not recoverable in accordance with section 8.10(3) of the Act.

Determination

29.  The reviewable decision is affirmed. The amount of ACE’s Pre-Accident Weekly Earnings is $1,531.36.

30.  The reviewable decision referred for merit review by ACE is about the amount of PAWE determined in the Insurer’s decision dated 21 August 2018, effective from 15 July 2018. It is the function of the DRS on merit review to arrive at the correct and preferable outcome in respect of the weeks covered by the reviewable decision that is referred for review. Accordingly, this determination has effect from 15 July 2018. The Insurer is to determine ACE’s entitlement to weekly payments of statutory benefits in accordance with the decision above from 15 July 2018.

Tajan Baba
Merit Reviewer, Dispute Resolution Service