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AFB v QBE Insurance (Australia) Limited [2019] NSWDRS MR 150

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Application for Review of Merit Review
CatchwordsReview of merit review – late application – translation – early and ongoing financial support – quick and just solution – earning continuously – PAWE – pre-accident weekly earnings – after school care
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 1.3, 1.3(2)(a), 1.3(2)(b), 1.3(2)(g), 7.15(1), 7.15(3), 7.15(6), Schedule 1 clause 4(1), (2)(a), (2)(b), (2)(2) & (3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 15 January 2019 cl 7.235, 7.236, 7.237, 7.238
Cases cited N/A
Text cited N/A
Parties AFB – Claimant
QBE Insurance (Australia) Limited – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Application for Review of Merit Review

Background

1.   The Claimant, AFB was injured in a motor vehicle accident on 4 March 2019.

2.   On 15 July 2019, Merit Reviewer Leigh Davidson made a merit review decision affirming the Insurer decision under review.

3.   The merit review decision was received by the Claimant’s solicitors on 16 July 2019.

4.   By application dated 16 August 2019 Stephen Young Lawyers on behalf of AFB, made an application to have the merit review decision reviewed on the basis that there is reasonable cause to suspect that the decision was incorrect in a material respect.

5.   On 19 August 2019 the Insurer, QBE Insurance (Australia) Limited, lodged a reply.

Jurisdiction and consideration of a late application

6.   The application for a review of a merit review decision was received on 16 August 2019. The merit review decision was made and dated on 15 July 2019.  Because the application for a review of a merit review decision was not made within 28 days of the merit review decision, I am satisfied the application was not made within the time required under sub- section 7.15 (6) of the MAI Act and clause 7.236 of the Guidelines.

7.   Clause 7.236 of the Guidelines provides that application for review of a decision of a single merit reviewer must be made within 28 days of the date of the decision.

8.   Clause 7.237 of the Guidelines provides that proper officer may refuse to accept an application for review if it is made more than 28 days after the date of the decision.

9.   Under clause 7.238, the proper officer may exercise a discretion to accept a late application for review of a decision, consistent with section 1.3 of the MAI Act, if the proper officer believes the exercise of that discretion would best promote the objects of the Act or the provision concerned, and the objects of DRS. When exercising the discretion, the proper officer must act reasonably, impartially and give proper and genuine consideration to the particular circumstances of the issue and the claim.

10.   By submissions to the application dated 16 August 2019 Stephen Young Lawyers on behalf of the Claimant submits that the application was delayed because it was required to be translated from English to Korean. The submissions also argue that the accepting the application would best promote the objects of the Act in all the circumstances of the claim.

11.   In submissions dated 19 August 2019 the Insurer states that it opposes the Claimant’s application (at paragraph 1.1). The Insurer’s submissions do not respond to or specifically oppose the Claimant’s solicitors’ submissions about why the application was delayed.

12.   Pursuant to clause 7.235 to clause 7.238 of the Guidelines I have decided to accept the late application in this case for the following reasons. When exercising my discretion to accept a late application I have had regard to section 1.3 of the MAI Act including sub-sections 1.3 (2) (a), (b) and (g) which refer to early and ongoing financial support and also to the quick and just resolution of disputes.   I have also considered Schedule 1 of the MAI Act and the objects of the DRS.  I have taken into account that the application was only a few days late.  I accept the explanation given by the Claimant’s solicitors that the application was delayed because it was required to be translated from English to Korean.  In all the circumstances of this case and considering the reasons for the late application outlined above, I have decided to accept the late application.

13.  Under sub-section 7.15 (3) of the MAI Act, I am only to refer the application to a panel, if I am satisfied that there is reasonable cause to suspect that the decision determining the review was incorrect in a material respect having regard to the particulars set out in the application.

Documents considered

14.  I have considered the submissions and documents provided in the application and the reply. I have also considered the merit review decision of Merit Reviewer Leigh Davidson dated 15 July 2019.

Legislation

15.  In making my decision/conducting my review I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the MAI Act”)
  • Motor Accident Guidelines effective 15 January 2019 (“the Guidelines”)
  • Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

Submissions

16.  Under sub-section 7.15 (1) of the MAI Act a claimant or insurer may apply to a proper officer to refer a decision of a merit reviewer to a review panel for a review.

17.  In a submission accompanying the application dated 16 August 2019, the Claimant submits that there is only one issue in dispute which is said to be incorrect in a material respect.  In summary, the Claimant’s solicitors’ submissions (at paragraph 8) about the issue in dispute is that the Assessor [sic- Merit Reviewer] erred in omitting and failing to address issue (a) in her reasons for merit review at paragraph 11 (ii).

18.  Merit Reviewer Davidson stated the issue in dispute at paragraph 11 (ii) of the merit review decision as: “…On 13 June 2019 the Claimant submitted that he had not earned continuously with XXYY 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.”

19.  The Claimant’s solicitors’ submissions (at paragraph 12) quoted clause 4(2)(a) of Schedule 1 of the MAI Act. The submissions (at paragraph 13) then concluded that: “… AFB had not earned continuously between 16 December 2018 and 28 January 2019, therefore his PAWE should be calculated from 28 January 2019 to 3 March 2019 ($2,322.03 over 5 weeks) therefore his PAWE was $464.41 rather than $221.57 as the insurer calculated.”

20.  I note that the Claimant’s solicitors’ submissions (at paragraph 4) state that there were originally a total of four distinct issues about the calculation of PAWE in dispute, but three had addressed by Merit Reviewer Davidson in his merit review decision.

21.  The Respondent Insurer provided detailed Submissions in Reply in a document attached to its reply dated 19 August 2019.

22.     The Respondent Insurer’s Submissions in Reply submit that the Claimant has not demonstrated a material error within Merit Reviewer Davidson’s Certificate.  The Insurer  “… submits it is unclear what material error the Claimant alleges to be present. The Insurer nonetheless notes the Merit Reviewer clearly addresses the issue of whether the Claimant was earning continuously to satisfy the provision of cl 4(2)(2) of Schedule 1 from para 26 to 34.”

Reasons

23.  The issue in dispute raised by the Claimant’s solicitors’ is: how should the Claimant’s PAWE be calculated?  This issue can be considered by analysing the questions:  from when was the Claimant “earning continuously” and from date should those earnings be calculated.

24.  Clause 4 (1) and (2) of Schedule 1 relevantly provides in part as follows:

(1) 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.

(2) In the following cases, pre-accident weekly earnings, in relation to an earner (other than a self-employed person) 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,

(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,

25.   The Claimant was first employed at XXXXX Child Care from 28 February 2018 until 28 November 2018.

26.  The Claimant then commenced working at XXYY After School Care Programme Incorporated (XXYY After School Care) from 3 December 2018.  He was employed at XXYY After School Care until the date of the accident, 4 March 2019 and his employment continued after that date. The Claimant did not earn income form the XXYY School Care during the period 17 December 2018 to 17 January 2019.

27.  Merit Reviewer Davidson found (at paragraph 29) that clause 4 (3) of Schedule 1 applies to the Claimant because he became entitled to earn more on a weekly basis.

28.   Merit Reviewer Davidson then found (at paragraph 30) that because clause 4 (3) of Schedule 1 applies in the Claimant’s case, then the definition of Pre-accident weekly earnings that applies is in clause 4 (2) (b) of Schedule 1.

29.  Clause 4 (2) (b)of Schedule 1 provides as that, if subclause (3) applies, that the weekly average of the gross earnings received during the period from when the change of circumstance occurred to immediately before the day of the motor accident.

30.  In Merit Reviewer Davidson’s reasons for decision he stated in paragraphs 32 to 35 of his reasons for decision.

“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.”

31.  Merit Reviewer Davidson concluded that as he was satisfied that clause 4(3) of Schedule 1 applies to the Claimant, (at paragraph 29), it then followed that the relevant PAWE that applies is in clause 4 (2) (b)of Schedule 1.

32.   The Claimant submits that AFB had not earned continuously between 16 December 2018 and 28 January 2019 and his PAWE should be calculated in the period from 28 January 2019 to 3 March 2019.  The Claimant further submits that clause 4 (2) (a) of Schedule 1 applies in AFB’s case because, although he was earning continuously, he did not earn continuously as is required by  clause 4 (2) (b), (at paragraphs 11 and 12).

33.   The Respondent’s Submissions in Reply submit that Merit Reviewer clearly addresses the issue of whether the Claimant was earning continuously to satisfy the provision of clause 4(2)(2) [sic] of Schedule 1 from para 26 to 34, (at paragraph 1.10 of Respondent’s Submissions).

34.   I have considered the merit review decision and also the submissions and particulars provided by the Applicant and Respondent Insurer. The Claimant’s solicitor submits that the Claimant’s 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. The Respondent’s Submissions in Reply that the Merit Reviewer applied the correct test for determining PAWE by applying clause 4(2)(b) and clause 4(3) of Schedule 1. The Merit Reviewer found that the Claimant’s circumstances changed because he changed jobs which entitled him to earn more. The Merit Reviewer concluded that, because the Claimant became entitled to earn more, clause 4(3) and clause 4 (2) (b) of Schedule 1 applied to determine the Claimant’s PAWE in his case.

35.   In my view, the Claimant’s solicitors’ submissions about the definition of “earning continuously” and whether clause 4 (2) (a) applied to the Claimant raises a reasonable cause to suspect that the review decision was incorrect in a material respect. Because the Claimant did not earn an income from the XXYY After School Care during the period 17 December 2018 to 17 January 2019 it is unclear whether or not he could said to have satisfied the requirements of clause 4 (2) (a) or clause 4 (2) (b).

36.   In his reasons for decision the Merit Reviewer does not refer to any available evidence from the Claimant’s employment that would clearly determine when he was earning continuously so that it could be determined whether clause 4 (2) (a) or 4 (2) (b) applied to the Claimant. Because there is no evidence or explanation about the reason for the break in income from the XXYY After School Care during the period 17 December 2018 to 17 January 2019, a reliable determination cannot be made as to when the Claimant “…started to earn continuously”.  Did he start to “earn continuously” from 3 December 2018 as contended for by the Respondent Insurer and found by the Merit Reviewer? Alternatively, did the Claimant start to “earn continuously” from 28 January 2019 as contended for by the Claimant’s solicitors’? In my view there was insufficient evidence or information before the Merit Reviewer to enable him to come to a definitive determination on this issue. Thus, I have reason to suspect that the Merit Review decision was incorrect in a material respect. Accordingly, I will refer the application to a panel because I am satisfied that there is reasonable cause to suspect that the decision determining the review was incorrect in a material respect having regard to the particulars set out in the application.

Conclusion

37.   For the above reasons, I will refer the application to a panel.

38.   I am satisfied that there is reasonable cause to suspect that the decision determining the review was incorrect in a material respect.

Ray Plibersek
Proper Officer
Dispute Resolution Service