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AFB v QBE [2019] NSWDRS MR 128

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsPre-accident weekly earnings – PAWE – earner – entitlement to statutory benefits – full-time student – part-time student – contract of service requiring training instruction or examination – change of circumstances – earning continuously – child care worker
Legislation cited                    Motor Accidents Injury Act (NSW) s 3.6, 3.7, 7.13(4), Schedule 1 clause 4(2)(a), 4(2)(b), 4(3), 5 & 6(1)(c), Schedule 2(1)(a)
Motor Accident Guidelines effective 13 July 2018 
Motor Accident Injuries Regulation 2017
Cases cited

N/A

Text citedN/A
PartiesAFB - Claimant
QBE  - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

Merit Reviewer's Reasons for Determination

Background

1.  There is a dispute between the Claimant and the Insurer about the amount of statutory benefits that is payable to the Claimant under Division 3.3 (weekly payments of statutory benefits to injured person’s) of the Motor Accidents Injuries Act (“the Act”).

2.  Specifically, this dispute relates to the Insurer’s calculation of the Claimant’s pre-accident weekly earning (PAWE) under Schedule 1 of the Act.

3.  The Claimant was employed on a casual basis with ABC Child Care Crew (part of XYZ Staffing Australia Pty Ltd)’ for the period of 28 February 2018 to 28 November 2018.

4.  He subsequently changed employment to XXXX After School Care Programme Incorporated (‘XXXX’) from 3 December 2018. His employment with XXXX continued beyond the subject accident date (4 March 2019).

5.  On 29 April 2019, the Insurer issued a liability determination which assessed the PAWE at $221.57.

6.  On 9 May 2019, the Claimant’s legal representative requested an internal review of the Insurer’s determination regarding the Claimant’s PAWE submitting that the correct rate should be $400 per week.

7.  On 21 May 2019, the Insurer issued a ‘Certificate of Determination – Internal Review’ which confirmed that the Claimant’s PAWE was assessed correctly at $221.57.

8.  The Claimant subsequently applied for a merit review with the Dispute Resolution Service seeking a determination that the Insurer’s reviewable decision was incorrect.

9.  The Insurer has confirmed that no dispute exists in relation to whether:

(i)  The Claimant is an earner within the definition of Schedule 1 of the Act.

(ii)  The Claimant has an entitlement to statutory benefits.

Documents and Information

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

11.   The Claimant’s submissions have changed on a number of occasions. I summarise as follows:

(i)  On 21 May 2019 the Claimant initially submitted that his PAWE was $400 per week.

(ii)   On 13 June 2019 the Claimant submitted that he had not earned continuously with XXXX between 16 December 2018 and 28 January 2019. As a consequence, his PAWE should be calculated from 28 January 2019 to 3 March 2019 ($2,322.03 over 5 weeks) at a rate of $464.41 per week.

(iii)   On 24 June 2019 the Claimant submitted:

(a)  That Clause 4(3) of Schedule 1 of the Act applies due to his change in employment and as a consequence his PAWE should be calculated in accordance with Clause 4(2)(b) of Schedule 1 of the Act; and

(b)  Clause 5 and Clause 6(1)(c) of Schedule 1 of the Act apply as he “is a student of Macquarie University’s Bachelor’s degree who had been employed under a contract of service under which he or she was expressly required to undergo any training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related”.

(iv)   On 4 July 2019 the Claimant submitted:
(a)  That Clause 6(1)(c) of Schedule 1 of the Act apply and that his PAWE should be calculated in accordance with Clause 6(2) of Schedule 1 of the Act. Accordingly, his PAWE should be $575.48 per week; and

(b)  In the alternate, that he had not earned continuously with XXXX between 16 December 2018 and 28 January 2019. As a consequence, his PAWE should be calculated from 28 January 2019 to 3 March 2019 ($2,322.03 over 5 weeks). This would result in a PAWE of $464.41 per week.

12.  The Insurer submitted:

(i)  On 21 June 2019 that Clause 4(2)(a) of Schedule 1 of the Act applies to this dispute and the Claimant’s PAWE should be calculated as follows:
Period of EmploymentAmount
3 December 2018 - 16 December 2018 $558.42
17 December 2018 - 30 December 2018 $0
31 December 2018 - 13 January 2019 $0
14 January 2019 - 17 January 2019 $0
28 January 2019 - 10 February 2019 $1227.06
11 February 2019 - 24 February 2019 $575.48
24 February 2019 - 10 March 2019 $519.41
Total $2,880.45 ÷ 13 weeks = $221.57
(ii)   On 1 July 2019, the Insurer further submitted that:
(a)  Clause 5 of Schedule 1 of the Act does not apply as there is no evidence that the Claimant is a full-time student; and

(b)  Clause 6(1)(c) of Schedule 1 of the Act does not apply as there is no evidence that the Claimant commenced a course of study at the request of his employer or that the study was expressly required by his employer.

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

Pre-Accident Weekly Earnings of Students

14.  PAWE of students are assessed in accordance with Clause 5 of Schedule 1 of the Act. Clause 5 states:

5 PRE-ACCIDENT WEEKLY EARNINGS OF STUDENTS
(1)  If a person injured as a result of a motor accident was at the time of the accident a full-time student:
(a)  the person is taken to be an earner on and from the time the person would have completed the course of studies in which the person was a full-time student and has attained the age of at least 15 years, and

(b)  the person's pre-accident weekly earnings from that time are to be calculated on the basis of the weekly earnings that the person would have received upon being employed on the completion of the course of studies in which the person was a full-time student.

(2)  For the purposes of this clause, if at the time of the motor accident the person is a full-time student at a secondary school, the weekly earnings that the person would have received upon being employed on the completion of the course of studies are to be calculated on the basis that the person will successfully complete the final year of secondary school.

(3)  The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the weekly earnings that the person would have received upon being employed on the completion of the course of studies in which the person was a full-time student.

15.  For Clause 5 of Schedule 1 of the Act to apply, a person injured as a result of a motor accident must be a full-time student at the time of the accident.

16.  The evidence before me shows that at the time of the accident, the Claimant was undertaking a ‘Bachelor of Arts with the degree of Bachelor of Education (Primary)’ at Macquarie University.

17.  Page 1 of the Macquarie University 2019 Course Handbook indicates that this degree is offered on a full time and part time basis.

18.  An email sent by the Claimant to his legal representative on 3 July 2019 clarifies his academic commitments as follows:

“I was a full-time student until the end of 2014. I started becoming a part time student from 2015”

19.   The Claimant’s Macquarie University academic record also states on page 3 that the Claimant was studying part time in 2018 and 2019.

20.  Having regard to the evidence above, I prefer to accept the Insurer’s submissions as I am satisfied that the Claimant was a part-time student at the time of the accident. Accordingly, Clause 5 of Schedule 1 does not apply to the Claimant.

Pre-Accident Weekly Earnings of Apprentices, Trainees & Young People

21.  PAWE of apprentices, trainees and young people are assessed in accordance with Clause 6 of Schedule 1 of the Act. Clause 6 states:

6 PRE-ACCIDENT WEEKLY EARNINGS OF APPRENTICES, TRAINEES AND YOUNG PEOPLE
(1)  This clause applies if, at the time an earner was injured in a motor accident, he or she was:
(a)  under the age of 21 years, or

(b)  an apprentice, or

(c)  employed under a contract of service under which he or she was expressly required to undergo any training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related,

and, under the terms of his or her employment, he or she was entitled to increments in earnings as the employment continued.

(2)  In respect of any week after the motor accident in which the earner is entitled to a weekly payment under Division 3.3 the calculation of which depends on the amount of the earner's pre-accident weekly earnings, the payment is to be calculated on the basis that the earner's pre-accident weekly earnings are the weekly earnings that it is likely that he or she would have been entitled to in that week had the accident not occurred and had he or she continued in the employment.

(3)  The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the weekly earnings that it is likely that an earner would have been entitled to in a week had the accident not occurred and had he or she continued in the employment concerned.

22.  For Clause 6(1)(c) to apply, the Claimant must have been employed under a contract of service which expressly required him to undergo training, instruction or examination for the purpose of becoming qualified in the occupation to which the contract of service related.

23.  Other than submissions on this point, the Claimant failed to provide any evidence that his university degree was an express requirement of employment with XXXX.

24.  As such, I cannot accept the Claimant’s submissions. I am not satisfied that the Claimant was employed under a contract of service which required him to undergo training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related.

25.  Accordingly, Clause 6(1)(c) of Schedule 1 does not apply to the Claimant.

Pre-Accident Weekly Earnings

26.  Both the Claimant and the Insurer have submitted that Clause 4(3) of Schedule 1 of the Act applies.

27.  Clause 4(3) of Schedule 1 states:

(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.

28.  The evidence provided by the Claimant attached in support of his application and subsequently served shows that on 3 December 2018, the Claimant’s earning circumstances changed. As a consequence of obtaining employment with XXXX, the Claimant became entitled to earn more on a weekly basis:

(i)  His hourly rate increased from $24.27 to $25.25; and

(ii)   He was paid a first aid allowance of and laundry allowance.

29.  I am therefore satisfied that Clause 4(3) of Schedule 1 applies to the Claimant.

30.  In circumstances where Clause 4(3) of Schedule 1 applies, the definition of ‘pre-accident weekly earnings’ is derived from Clause 4(2)(b) of Schedule 1.

31.  Clause 4(2)(b) of Schedule 1 states:

4 MEANING OF "PRE-ACCIDENT WEEKLY EARNINGS"--GENERAL
(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:

(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,

32.  The Claimant submits that his PAWE should be calculated from 28 January 2019 to 3 March 2019 as he had not earned continuously between the period between 16 December 2018 to 28 January 2019.

33.  This submission is inconsistent with the Act. Clause 4(2)(b) of Schedule 1 of the Act requires the PAWE to be calculated from ‘when the change of circumstances’ occurred, not from when the Claimant earned continuously.

34.  The Claimant’s change of circumstances occurred on 3 December 2018 when he became entitled to earn more on a weekly basis due to an increase in his hourly rate and the addition of a first aid and laundry allowance. As such, the Claimant’s submission is not accepted.

35.  The relevant period for the calculation of PAWE is therefore from 3 December 2018 to 4 March 2019. This period spans 13 weeks.

36.  The Claimant’s pay slips over this period are summarised as follows:

Period of EmploymentAmount
3 December 2018 - 16 December 2018 $558.42
28 January 2019 - 10 February 2019 $1,227.06
11 February 2019 - 24 February 2019 $575.48
24 February 2019 - 10 March 2019 $519.41
Total $2,880.45

37.  I acknowledge that the Claimant’s pay slip for the period 24 February 2019 to 10 March 2019 covers a period of both before and after the accident. The pay slip does not detail specifically what dates the Claimant worked during this period. There is also no further evidence before me to confirm whether the income was earned before, on or after the date of the accident in this pay period.

38.  As the Insurer has included this amount in its initial PAWE assessment, internal review and merit review submissions, I am prepared to accept that the income was earned on or before 4 March 2019.

39.  The Claimant’s PAWE is therefore calculated as follows:

$2,880.45 ÷ 13 weeks = $221.57

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed
  • Effective Date: This determination takes effect on 15 July 2019.

Leigh Davidson
Merit Reviewer, Dispute Resolution Service