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AFU v Allianz [2019] NSWDRS MR 147

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Merit Review 
CatchwordsAmount of weekly payment of statutory benefits – PAWE – pre-accident weekly earnings – application for personal injury benefits – certificate of fitness – earner – loss of earnings – physiotherapist’s report – full time carer – nursing assistant – inconsistent information
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss .6(1), 3.6(2), 3.15, 7.13(4), 8.10, Schedule 1 clause 2(a)(i), schedule 1 clause 3(1), schedule 1 clause 4(1), Schedule 2 clause (1)(a), schedule 2 clause 3(n)
Motor Accident Injuries Regulation 2017 Schedule 1 part 1
Motor Accident Guidelines cl 7.230
Cases cited N/A
Text cited N/A
Parties AFU – Claimant
Allianz – Insurer 
Disclaimer This 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

Introduction

1.  There is a dispute between the claimant and insurer in respect to the claimant’s amount of weekly payments of statutory benefits payable to the claimant under Section 3.6 of the Motor Accident Injuries Act 2017 (the Act).

Background

2.  ;The claimant is a 36 year old woman who was injured in a motor accident on 5 April 2019.

3.  On 30 April 2019, the claimant lodged an Application for Personal Injury Benefits which included a claim for weekly benefits. In that application, she stated that she was not working at the time of the accident but had the intention to do so.

4.  On the same date, the claimant lodged a further Application for Personal Injury Benefits stating that she was working at the time of the accident as a “Leasing Assistant” and earning $650.

5.  Also on the same date, the claimant lodged a Certificate of Fitness dated 10 April 2019 from Dr Angela Lam with both applications. The claimant was certified by Dr Lam as having no current fitness for work from 5 April 2019 to 5 May 2019.

6.  The claimant submitted two further Certificates of Fitness dated 8 May 2019 and 5 June 2019 from Dr Lam which certified the claimant as having no current fitness for work from 5 May 2019 to 4 July 2019.

7.  In support of her application for weekly payments, the claimant provided the insurer with payslips from her pre-accident employer, XXX Pty Ltd for the period between 2 February 2018 and 6 December 2018.

8.  On 7 June 2019, the insurer issued a Liability Notice- benefits up to 26 weeks, accepting liability for the claim for statutory benefits. The notice advised the claimant that the insurer would pay for reasonable and necessary treatment and care services but would not pay weekly payments. The notice stated:

“You will not be eligible for payments of weekly benefits as the information you have provided does not indicate you are incurring a loss of earnings” and:

“Whilst we accept you meet the definition of an ‘earner’, payments of weekly benefits are only payable if you have incurred a loss of earnings as a result of your injury. You were not employed at the time of the motor vehicle accident as [sic] there is no immediate loss of earnings.”

9.  On 12 June 2019, the claimant lodged an application for an internal review. She provided the insurer with a statutory declaration sworn on the same date. She deposed:

“I had ceased working in my last employment in December 2018. I wanted to take a break and re-enter the workforce after the school holiday period. In mid-February 2019, I was actively taking actions to facilitate in searching, applying and reaching out to potential employers and applying for job offers. I was seeking and applying for a full-time paid position. I ceased seeking employment on 5 April 2019 because of my injuries and disabilities sustained in the motor accident as I have been certified unfit to work. If not for the accident I believe that I would be working in a full-time paid job”.

10.  On 25 June 2019, the insurer issued a certificate of determination for the review with the following outcome:

“The decision that you do not have a loss of earnings is maintained.”

11.  On 9 July 2019 the Claimant lodged an application with the Dispute Resolution Service to resolve the dispute as a miscellaneous claim assessment matter under Clause 3(n) of Schedule 2 of the Act – any issue of liability for a claim, part of a claim, for statutory benefits not otherwise specified in this Schedule , not as a merit review of the Insurer’s decision under Clause (1) (a) of Schedule 2 of the Act- the amount of statutory benefits that is payable under section 3.4 (Statutory Benefits for funeral expenses) or under Division 3.3 (Weekly payments of statutory benefits to injured persons).

12.  On 29 July 2019, in support of this application, the claimant provided a letter from a prospective employer, Ms L dated 9 July 2019. Ms L stated:

“I am currently self employed and have my own Aged Care Consultancy business. AFU was previously employed as a Personal Support Worker at XXX Aged Care where I was previously her Manager. In December 2018, AFU had resigned from her post due to personal family matters. We had agreed at the time of her resignation that she could return when she had sorted out her matters. I have since left XXX Aged Care and currently self employed since February 2019. AFU had approached [sic] in February 2019 and advised me that she was intending to return to the workforce and enquired if I had any positions available. Given AFU's work ethic history and experience she would have been a suitable candidate for consideration; however I had not yet had any positions available and would have contacted her if a role became available.”

Procedural Issue arising

13.  The insurer disputes that the matter should proceed as a miscellaneous claim under Clause 3(n) of Schedule 2.

14.  It is necessary for me to determine whether the assessment should proceed as a merit review under Clause (1)(a) of Schedule 2 of the Act or as a miscellaneous claim assessment under Clause 3(n) of Schedule 2 of the Act.

15.  As a Merit Reviewer and a Claims Assessor appointed under the Act, I have power to determine the appropriate jurisdiction in which the assessment is to proceed.

16.  In her primary submissions made on 9 July 2019, the claimant submits that a loss of earnings dispute is an issue of liability for the claim of statutory benefits. In its liability notice issued on 7 June 2019, the insurer advised the claimant that she did not have a loss of earnings. The internal review was conducted in relation to a loss of earnings. Given that the insurer has not made a determination of loss of earnings, Division 3.3 remains outstanding and in dispute and hence Schedule 2 Clause 1 (a) cannot apply and her application falls under Division 3.3.

17.  In reply, the insurer submits that the dispute concerns the amount of weekly payments of statutory benefits which was reviewable under Schedule 2 Clause 1 (a). This clause specifically refers to a merit review of a dispute about the amount of statutory benefits, including weekly payments of statutory benefits under Division 3.3. The matter should therefore proceed as a merit review under those provisions.

18.  Further, the insurer submits that the amount of weekly benefits has been determined as “NIL”

as there is no loss of earnings and the internal review was conducted under Schedule 2 Clause 1 (a)  as indeed requested by the claimant in her own application.

19.  In reply submissions on 29 July 2019, the claimant submits that while loss of earnings may affect the amount of statutory benefits, it is not the only factor. It generally needs to progress to the PAWE for the amount of statutory benefits to be determined. The original decision of the insurer had only confirmed the status of earner and loss of earnings of the Claimant rather than the PAWE. The internal dispute was lodged not on the basis of amount of statutory benefits, but on the basis of status of loss of earnings.

20.  Further, the claimant submits that loss of earnings might contribute to both the amount of statutory benefits and award of damages. The amount of statutory benefits, according to Schedule 1 of the Act, requires confirmation of earner, loss of earnings and PAWE. Therefore, the claimant did not seek a dispute [sic] on the amount of statutory benefits as it was never decided, but the status of loss of earnings.

21.  The claimant also says that she submitted an incorrect statement to the insurer by stating that "This dispute is in relation to the amount of weekly benefits", as the insurer had never decided on the amount of statutory benefits. As a result, the insurer had no jurisdiction to review a decision on the amount of statutory benefits.

22.  I consider that no dispute about liability for statutory benefits can arise because the insurer accepted liability for the claim for statutory benefits in the notice issued on 7 June 2019. It may be argued that a dispute can arise for part of a claim, for statutory benefits because the insurer advised the claimant that she is not “eligible” for weekly payments of statutory benefits. I also consider that this argument cannot be sustained as a dispute about liability, because the insurer conceded that the claimant was an earner. The dispute can only be about whether the claimant incurred a loss of earnings and if so, what amount of weekly payments the claimant is entitled to. In this application, the insurer made the issue in dispute much clearer by submitting that the amount is “Nil”. If its original decision was conveyed in the same terms to the claimant in the liability notice, this jurisdictional dispute may not have arisen.

23.   I find that this dispute falls within a merit review under Clause (1) (a) of Schedule 2 of the Act - the amount of statutory benefits that is payable under section 3.4 (Statutory Benefits for funeral expenses) or under Division 3.3 (Weekly payments of statutory benefits to injured persons) and I shall therefore proceed to determine the matter under that clause as a merit review.

Documents and Information

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

Submissions

25.  The claimant submits she was an earner within the meaning of Clause 2(a)(ii) of Schedule 1 of the Act because, as at the date of the motor accident, she had worked during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident and that she had not retired from all employment.

26.  The claimant submits, that although she was not employed at the time of the motor accident, she was seeking employment and would have received an offer and been capable of working but for the accident.

27.  The claimant submits that she has sustained a loss of earnings within the meaning of Clause 3(1) of Schedule 1 of the Act.

28.  The insurer concedes that the claimant is an earner. It says, however, that the claimant did not sustain a loss of earnings because, on the balance of probabilities, she would not have been in employment, but for the accident, at the time of the Insurer’s reviewable decision.

29.   In reaching its decision the insurer took into account the following matters:

a.  In her Application for Personal injury Benefits dated 30 April 2019, the claimant states that she was “Not working since accident”. In a further Application for Personal Injury Benefits dated 30 April 2019, the claimant stated that she was “Not working since accident. Intention to return to work [sic]”.

b.  The claimant’s statutory declaration sworn on 12 June 2019.

c.  The claimant has not provided any evidence or proof of job seeking requests made by the insurer. Nor has the claimant provided the insurer with a copy of the resignation letter/termination letter from her previous role and a copy of the employment contract, a brief history of her employment for the past 5 years and has not advised whether the claimant has any dependants.

d.  The claimant’s statutory declaration is at odds with what she has informed her physiotherapist [R5] and [R12] that her current work status is “full time carer for 2 children plus one with needs”.

e.  Whilst the claimant has stated she was actively seeking employment from February 2019, she has been unable to provide any evidence to substantiate this and the motor accident occurred two months later on 5 April 2019.

f.  The claimant had not been worked for over five months prior to the motor accident and according to her physiotherapist’s reports [R5] and [R12], she stopped working for the purpose of becoming the primary carer for her children.

30.  In further submissions made on 22 August 2019 at my request, the claimant says firstly, that she lodged two applications for personal injury benefits because she thought that she was directed to do so from the insurer’s website, by email and post. She says that the claim was made on 30 April 2019 by email and post with identical submissions. Secondly, the claimant says that the words “Leasing Assistant” on the application form were typographical errors and should have read “Nursing Assistant”. Thirdly, the claimant says that she nominated the amount of $650 gross per week as the amount she would have earned as a nursing assistant if she were able to return to work as at the date of the accident.

Legislation

31.  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 15 January 2019 (“the Guidelines”)

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

32.  The insurer has taken issue with the fact that the claimant has lodged two separate applications for personal injury benefits and that there was inconsistent information provided in the two documents. The insurer’s submissions are outlined in paragraphs 29(a) of these reasons.

33.  At my request, the claimant provided further submissions on 22 August 2019 to explain the discrepancies.

34.  I note in their letter of 30 April 2019 to the insurer, which attached one of the claimant’s application for personal injury benefits (A12), the claimant’s legal representatives requested that all written correspondence in reply be sent in simplified Chinese to the claimant. On that basis, I am comfortable in assuming that the claimant does not have full command of the English language.

35.  I accept the claimant’s explanation (paragraph 30) for having lodged two separate forms.

36.  It was unclear to me what the claimant was referring to in her submissions at paragraph 30, regarding “identical submissions”; whether she was referring to submissions attached to the forms and not the information she completed in the forms.

37.  I accept the insurer’s submission that there were inconsistencies in the information provided in the two forms. Nevertheless, I accept the claimant’s explanation that she meant to convey to the insurer that she was previously working as a nursing assistant, that at the time of the accident she was not working and had the intention of returning to work as a nursing assistant on her previous earnings of about $650 per week. If the insurer had an issue with these inconsistencies, I consider that they should have been raised swiftly with the claimant prior to the issue of the liability notice on 7 June 2019 and by following the decision making principles under 4.47.2 and 4.49 of the Guidelines and/or the model procedures referred to in figure 4.1 of the Guidelines.

What are the requirements of the Act for weekly payments of statutory benefits?

38.  Section 3.6 (1) of the Act provides:

An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the first entitlement period.

[emphasis added]

39.  Clause 2 of Schedule 1 of the Act provides a definition of earner as follows:

A person who is injured as a result of a motor accident is an earner if the person is at least 15 years of age and who:

(a)  was employed or self-employed (whether or not full-time):

(i)   at any time during the 8 weeks immediately preceding the motor accident, or

(ii)  during a period or periods equal to at least 13 weeks during the year immediately preceding the motor accident, or

(iii)  during a period or periods equal to at least 26 weeks during the 2 years immediately preceding the motor accident,

and, at the date of the motor accident, had not retired permanently from all employment, or

(b)before the motor accident, had entered into an arrangement (whether or not an enforceable contract):
(i)  with an employer or other person to undertake employment, or

(ii) to commence business as a self-employed person, at a particular time and place, or

(c)was, immediately before the motor accident, receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.

[emphasis added]

40.  There is no dispute about the claimant being an earner. She is for the purpose of section 3.6 (1) of the Act an earner because she satisfies the requirements of subclause 2(a)(ii) of Schedule 1 and, at the date of the motor accident she had not retired permanently from all employment.

41.  The sole issue for me to determine is whether the claimant has suffered a total or partial loss of earnings as a result of her injury arising from the motor accident, thereby entitling her to weekly payments of statutory benefits under section 3.6.

42.  Clause 3 of Schedule 1 of the Act provides the definition of loss of earnings:

(1)  Loss of earnings means a loss incurred or likely to be incurred in a person’s income from personal exertion.

(2)   A person’s income from personal exertion is:

(a)  the amount that is the income of the person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered

(b) ……….

[emphasis added]

43.  The insurer has taken the view that because the claimant was not employed as at the date of the motor accident, she has not incurred any loss of earnings.

44.  Loss of earnings is defined to mean not only a loss incurred but also a loss likely to be incurred in a person’s income from personal exertion.

45.  The Act does not limit access to weekly payments to only those persons engaged in employment at the time of the accident or at the time of the Insurer’s internal review.

46.  A casual, seasonal or freelance worker not in work at the time of the accident is likely to incur a loss of earnings if they are unable to work when work becomes available.

47.  In the present case, the claimant intended to take a break in work over the holiday period, and intended to re-enter the workforce in February 2019. She was still looking for work as at the date of the accident, 5 April 2019. Thereafter, she was unable to work. She has provided the insurer with a statutory declaration to that effect. She also has now provided with this application, a letter from a prospective employer, Ms L who stated that the claimant approached her, looking for work in February 2019.

48.  I do not accept the insurer’s submission that the claimant did not intend to re-join the workforce as she said she did. The evidence she provided in her statutory declaration is sufficient to show that, at the date of the accident the claimant had not retired permanently from all employment The physiotherapist’s reports described the claimant’s occupation at the time and is not inconsistent with the claimant’s intention. The letter from the prospective employer provided with this application lends further support to that situation.

49.  It may have been helpful for the claimant to have provided the insurer with a resignation/ termination letter, a history of her employment for the last 5 years or records of job searches if such information would have persuaded the insurer to reach the decision that the claimant is likely to have incurred a loss of earnings as at the date of the accident.

50.  I am satisfied that the claimant’s statutory declaration [A5 and R10] together with the payslips/wage details (from XXX Pty Ltd for the period between 2 February 2018 and 6 December 2018 [R7] which were before the insurer at the time of the internal review, were sufficient evidence to enable the insurer to determine that , as at the date of the motor accident and as a result of her injury, the claimant is likely to have incurred a loss of earnings.

51.  For these reasons, the reviewable decision is set aside.

52.  I note in paragraph 5 of the insurer’s certificate of determination, the insurer has acknowledged that it has been provided payslips from XXX Pty Ltd for the period between 15 February 2018 and 6 December 2018. I make a finding that this information is sufficient for the calculation of the claimant’s PAWE under subclause 2(a) ( ii ) and clause 4(1) of Schedule 1 of the Act.

53.  I note in paragraphs 6 and 7 of the insurer’s certificate of determination, the insurer has acknowledged that the two Certificates of Fitness issued by Dr Lam on 8 May 2019 and 5 June 2019 confirm that the claimant has no current capacity for work from 4 May 2019 to 4 July 2019. I also note that the Certificate of Fitness issued by Dr Lam on 10 April 2019 which was lodged with the insurer on 10 April 2019, also confirms that the claimant has no current capacity for work from 5 April 2019 to 5 May 2019.

54.  I am satisfied that all three Certificates of Fitness issued by Dr Lam comply with the requirements of section 3.15 of the Act. Accordingly, I make a finding, for the purpose of calculating the amount of the claimant’s weekly payment of statutory benefits under section 3.6(2) of the Act, that the claimant’s post-accident earning capacity for the first entitlement period is NIL.

Legal Costs

55.  Having regard to section 8.10 of the Act and Schedule 1, Part 1 of the Regulations, legal costs are not recoverable for this merit review type.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:
o   The claimant is entitled to receive weekly payments of statutory benefits under Division 3.3. of the Act.

o   The claimant’s entitlement to weekly payment of statutory benefits is for the period commencing 6 April 2019 to 4 July 2019 under section 3.6(1) of the Act.

o  Within 7 days of the effective date, the insurer is to calculate and issue the claimant’s pre-accident weekly earnings (PAWE) in accordance with Clause 4(1) of Schedule 1 of the Act and in accordance with my finding in paragraph 52 of my reasons.

o  The insurer is to make weekly payments to the claimant thereafter, in accordance with section 3.6(2) of the Act and having regard to Clause 7.230 of the Guidelines.

  • Effective Date: 9 September 2019.
  • Legal Costs: Not recoverable.

Maurice Castagnet
Merit Reviewer, Dispute Resolution Service