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ADO v NRMA Insurance Ltd [2019] NSWDRS MR 092

Overview

Jurisdiction:  Merit Review

Catchwords:  Late application – entitlement to statutory benefits on the day of the accident - Pre-accident weekly earnings - PAWE – increased work hours-PAYG - legal costs

Legislation cited:

  • Motor Accident Injuries Act 2017: Section 3.6, Schedule 1 Clause 4
  • Motor Accident Injuries Guidelines- Clause 7.192

Cases cited:  N/A

Text cited:  N/A

Parties:

  • ADO – Claimant
  • NRMA Insurance Australia Limited - Insurer

Disclaimer: This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit review certificate

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

Claimant

ADO

Insurer

NRMA Insurance

Claim Number

NWRTP1802197

Decision-maker

Robert Nimac

Date of decision

1 November 2018

Nature of decision

Weekly payments of statutory benefits and the amount of preaccident weekly earnings

Our Reference

10073929

Merit Reviewer

Tami O'Carroll

Date of this Certificate

14 February 2019

Merit reviewer's determination

The reviewable decisions are the decisions of the insurer about the amount of ADO's pre-accident weekly earnings and the date from which ADO's weekly payment of statutory benefits are payable. These are decisions that affect the amount of weekly payments of statutory benefits and are merit reviewable matters under Schedule 2(1)(a) of the Motor Accident Injuries Act 2017.

My determination of the merit review matters are as follows:

1. The insurer's decision in respect of the amount of ADO's pre-accident weekly earnings (PAWE) is set aside and the following decision is made in substitution for that decision. The amount of ADO's PAWE is $705.02.

  • This determination has effect from 19 September 2018.

2. The reviewable decision that there is no entitlement to a payment of weekly statutory benefit on the day of the motor accident is affirmed.

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

Tami O'Carroll

Dispute Resolution Service Merit Reviewer

Reasons

Background

  1. ADO was injured in a motor vehicle accident on 18 September 2018.
  2. On 1 November 2018, the insurer issued a decision in which it assessed ADO's pre-accident weekly earnings (PAWE) at $765.40. ADO sought review of that decision.
  3. ADO requested a review of the insurer's calculation of her PAWE and that payments commence from and including the date of her accident. On 11 December 2018, the insurer issued an internal review decision affirming its original decision. ADO indicates that she received the decision the same day.
  4. ADO lodged an application for merit review with the Dispute Resolution Service which was received on 10 January 2019. I acknowledge that the this is outside of the 28-day time limit set out in section 7.12 of the Act.
  5. On 30 January 2019, an officer of the Dispute Resolution Service (DRS) wrote to the parties informing them that pursuant to clause 7.192 of the Guidelines and for reasons therein provided the DRS exercised its discretion to accept ADO's late application.
  6. ADO seeks a review of the insurer's decisions about the amount of her PAWE and that she is not entitled to statutory benefits for the day of the accident. These are decisions that affect the amount of weekly payments of statutory benefits.

Documents and information

9. I have considered all documents provided and submissions made with the application and the reply and any further information that has been provided to the DRS. I am satisfied that all information has been exchanged between the parties.

Submissions

  1. In the application for merit review, ADO makes the following submissions:
  • Her Work hours increased t0 028 hours per week from 9 July 2018.
  • Her PAWE was calculated based on her group summary from last year. This does not reflect her current income.
  • The incentive structure was revised in April 2018. This is an important component of her pay structure which has not been considered.
  • She was not paid her shift hours for the date of accident "due to the legislation" however, she was on her way to work when the accident happened. As she is a casual worker, she lost wages due to the accident.

11.The insurer submits:

  • ADO is a debt collector with ABC. She indicates in her claim for that she earned approximately $1,875.88 per fortnight.
  • ADO's accident occurred on 18 September 2018 and the "12 months immediately before the day on which the motor accident occurred" is therefore from 18 September 2017 to 17 September 2018.
  • It did not have any evidence to verify the earnings alleged by ADO. It did request verification and she provide a certificate of service from ABC and an excel spreadsheet containing pay details.
    ADO is not entitled to statutory benefits for the day of the accident. Section 3.5 of the Act states that the first entitlement period is "the period of 13 weeks that starts on the day after the day of the motor accident".
  • The information in the spreadsheet cannot be verified as it is in an editable document and not on the employer's letterhead. It made its decision based on the PAYG statement for the 2017-18 financial year and believes this is a better source of information.
  • Based on the PAYG statement, her PAWE was calculated as follows: $39,801 (annual gross income) divided by 52 weeks = $765.40. This is a higher amount than what the calculation of PAWE would be based on the figures in the spreadsheet; $39,220.81
    (gross earnings for 12 months) divided by 52 weeks = $754.25.

Legislation

12.In conducting my review, I have considered the following:

  • Motor Accident Injuries Act 2017 (NSW) (the Act)
  • Motor Accident Guidelines effective 13 July 2018 (the Guidelines)

'—Motor Accident Injuries Regulation 2017 (NSW) (the Regulation)
Pre-accident weekly earnings

13.'Clause 4(1) of Schedule'l 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.

14.Subclause (2) provides different methods to calculate PAWE in specific circumstances:

(2) In the following cases, pre-accident weekly earnings, in relation to an earner 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,
(al) 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.

15. I am not satisfied that subclause (2)(a) applies as the ADO's payslips support that she had been continuously earning for 12 months prior to her accident. As ADO was obtaining earnings for this 12-month period, subclause 2(a1) also does not apply. There is no information before me to indicate that ADO had entered into any arrangement that may be relevant for the purposes of subclause 2(c).

16. Subclause (2)(b) applies in circumstances where subclause 4(3) of Schedule 1 is satisfied. This is where:
"during the 12 months immediate before the day of the motor accent, 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 earning regularly, or becoming entitled to earn, more on a weekly basis that he or she was earnings before the change occurred."

17. ADO submits that her incentive structure changed in April 2018 and her work hours   increased to 28 hours per week from 9 July 2018. However, as can be seen from the table below, ADO's earnings for pay periods in July, August and September 2018 (after these changes  were -implemented) were generally less than -in the preceding pay periods.] am therefore not  satisfied that there was a significant change in her earnings circumstances that resulted in her earning regularly, or becoming entitled to earn, more on a weekly basis than she was before this change of hours occurred. I am therefore not satisfied that subclause 2(b) applies.

18. As subclause 4(2) of the Act does not apply, the amount of ADO's PAWE is to be determined in accordance with the definition provided in 4(1) of schedule 1 of the Act.

19. I have before me ADO's payslips which show her gross earnings from ABC (Aust) Pty Ltd (ABC) over the 12 months immediately before the injury; 18 September 2017 — 17 September 2018.

20.The insurer made its decisions based on ADO’s PAYG statement for the 2017-18 financial year. It appears that her payslips were not available to the insurer at the time. As the PAYG statement does not show ADO's gross earnings for the whole 12 months prior to the injury
NSW

Government

(but only part of this period), I consider her payslips are a more reliable source of information in this regard.

21.I note that the figures shown in the spreadsheet provided by ADO differ in some instances to the figures shown as her gross earnings in her payslips. Again, I prefer the earnings information provided in the payslips. As submitted by the insurer, the figures provided by ADO in her spreadsheet are not verifiable and have not been provided on ABC's company letter head. Conversely, the payslips provided are on company letter head and set out the hours of work and rates of pay for each pay period as well as amounts paid for other things such as "incentive" payments. I therefore consider the payslips the most reliable source of information before me as to ADO's gross earnings for the relevant period.

22.I acknowledge that ADO makes submissions regarding incentive payments. These have been included in her total gross earnings in her payslips. I have included all incentive payments which were received by ADO during the 12 months immediately before her accident and as shown in the table below.

    

Pay period

Ordinary time

Incentive

Total

18/09/17 - 23/09/17

$597.42

$108

$705.42

23/09/17 - 6/10/17

$1,699.32

 

$1,699.32

7/10/17 - 20/10/17

$969.14

$139.91

$1,109.05

21/10/17 - 3/11/17

$1,691.02

 

$1,691.02

4/11/17 -17/11/17

$1,699.32

 

$1,699.32

18/11/17 - 1/12/17

$1,466.99

 

$1,466.99

2/12/17 - 15/12/17

$660.48

 

$660.48

16/12/17- 29/12/17

$849.66

 

$849.66

30/12/17 - 12/01/18

$1,397.30

 

$1,397.30

13/01/18 - 26/01/18

$1,642.91

 

$1,642.91

27/01/18 - 9/02/18

$1,715.92

 

$1,715.92

10/02/18 - 23/02/18

$1,659.49

 

$1,659.49

24/02/ 18 - 9/03/18

$1,991.41

 

$1,991.41

10/03/18 - 23/03/18

$1,699.32

 

$1,699.32

24/03/18 - 6/04/18

$1,447.08

 

$1,447.08

7/04/18 - 20/04/18

$1,506.81

$110

$1,616.81

21/04/18 - 4/05/18

$1,244.63

 

$1,244.63

5/05/18 - 18/05/18

$1,417.23

$202.50

$1,619.73

19/05/18 - 1/06/18

$1,151.72

 

$1,151.72

2/06/18 - 15/06/18

$1,349.87

$277.50

$1,627.37

16/06/18 - 29/06/18

$1,554.65

 

$1,554.65

30/06/18 - 13/07/18

$1,231.37

$378.75

$1,610.12

14/07/18 - 27/07/18

$348.50

 

$348.50

28/07/18 - 10/08/18

$1,543.36

 

$1,543.36

11/08/18 - 24/08/18

$182.55

$378.75

$561.30

25/18/18 - 7/09/18

$1,241.33

 

$1,241.33

8/09/18 - 17/09/18

$1,062.10

$145.45

$1,062.10

Total

  

$36,761.76

  1. ADO received an incentive payment of $179.47 in the 9 September to 22 September 2017 pay period. During this period ADO worked a total of 45.2 hours, 27.2 of which were during the 12 months prior to the injury. I am satisfied that a portion of the incentive payment, based on the hours of work ADO carried out during the relevant period should be included. I am satisfied that $108.00 of the total amount of this incentive payment should be included: $179.47 divided by 45.2 hours x 27.2 hours.
  2. ADO received an incentive payment of $150 in the 8 September to 21 September 2018 pay period. During this period ADO worked a total of 33 hours, 32 of which were during the 12 months prior to the injury and 1 hour which was not. I am again satisfied that a portion of the incentive payment, based on the hours of work ADO carried out during the relevant period, should be included. I am satisfied that $145.45 of the total amount of this incentive payment should be included: $150 divided by 33 hours x 32 hours.
  3. ADO's payslips show that she received a total of $36,761.76 in gross earnings in the 12 months immediately prior to the accident. There were 52 weeks and 1 day in the period from 18 September 2017 — 17 September 2018. I find that the amount of her PAWE is $705.02 ($36,687.78 divided by 52 1/7.
  4. The Insurer's decision in respect of the amount of ADO's PAWE is set aside and the above decision is made in substitution for that decision.

Weekly payments of compensation

27.     ADO makes submissions to the effect that she lost wages on the day of the accident and should be reimbursed for this loss.

  1. Whilst I acknowledge that ADO was unable to attend work on the day of the accident and due to the accident and I sympathise with her situation, it is clear that under the Act, ADO is not entitled to statutory benefits for the day of the accident.
  2. Weekly payments to a claimant who is injured in a motor accident and entitled to such payments under the Act commence during the first entitlement period" pursuant to section 3.6(1) of the Act.
  3. The first entitlement period is defined in section 3.5 of the Act. This states that the first entitlement period is "the period of 13 weeks that starts on the day after the day of the motor accident [emphasis added]".
  4. I therefore affirm the Insurer's decision that there is no entitlement to a payment of weekly statutory benefits for the day of the accident.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision about the amount of PAWE is set aside and the following decision is made in substitution for the reviewable decision:
    • The amount of ADO's PAWE is $705.02.
  • Effective Date — The insurer's decision about PAWE covers weekly payments of statutory benefits payable from the date after the accident. 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 19 September 2018.
  • The reviewable decision that there is no entitlement to statutory benefits on the day of the accident is affirmed.

Tami O'Carroll

Dispute Resolution Service Merit Reviewer