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AFW v NRMA [2019] NSWDRS MR 151

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsAmount of statutory benefits – earner – prior motor vehicle accident – cleaning business – local casual work – PAWE – pre-accident weekly earnings – post-accident weekly earnings
Legislation citedMotor Accidents Injury Act (NSW) ss 6.21, 7.15(1), 7.15(3), 7.15(6), 8.10, Schedule 1 clause 2(1), Schedule 2 Clause 2(e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.235, 7.236, 7.237, 7.238
Cases cited

N/A

Text citedN/A
Parties AFW - Claimant
NRMA - 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 AFW and the Insurer in respect to his entitlement to be paid weekly payments of statutory benefits.

2.  AFW was involved in a motor vehicle accident on 2 December 2017.

3.  He had been involved in a prior motor vehicle accident on 12 October 2016. AFW provided information to the insurer by letter dated 2 December 2017. It appears however that that letter was written on 2 December 2018.

4.  On 3 December 2018 the insurer wrote to AFW advising they did not consider him an earner within the definition of that word under the Motor Accidents Injuries Act 2017 (the “Act”) and determined therefore that he was not entitled to statutory benefits.

5.  After that date there is correspondence between AFW and the insurer.

6.  In approximately July 2019 AFW advised the insurer that he wished them to proceed with an Internal Review of that determination.

7.  The insurer did so and by letter dated 1 August 2019 an Internal Review decision was provided.

8.  The Internal Review affirmed the decision of the original claims consultant that AFW was not an earner and was therefore not entitled to statutory benefits.

9.  An Application for a Merit Review was lodged dated 17 July 2019, ie a date prior to the date upon which the Internal Review was undertaken.

10.  It appears that AFW was unaware of all the procedures he was required to undertake and it was at that point that the officer from the Dispute Resolution Service (“DRS”) requested, on behalf of AFW, that the Internal Review proceed.

11.  Upon receipt of the decision of the Internal Review, AFW made it clear that he objected to the insurer providing the Internal Review decision directly to his solicitors, ie Maurice Blackburn.

12.  Upon receipt of the insurer’s Internal Review, AFW requested the officer from DRS to proceed with a Merit Review and it was at that stage that the matter was allocated to myself.

13.  I conducted a teleconference with the parties on 5 September 2019 at which time I was advised by AFW that he did not wish to answer any questions put to him by myself to clarify the issues.

14.  My concern was whether the claimant did fall within the definition of earner.

15.  Schedule 1 Clause 2 of the Act provides that a person who is at least 15 years of age can be an earner for various reasons.

16.  In his letter dated 2 December 2017, AFW advised the insurer that he did have intentions of returning to work at the time of the motor vehicle accident on 2 December 2017 and that in the two years prior to the motor vehicle, ie from December 2015 onwards, he may have been participating in employment with his wife in a cleaning business or alternatively had, in the middle of 2016, started doing some local casual work.

17.  The same letter makes it clear that the claimant had previously had employment which he had to cease because of various injuries. It is not clear however whether in those times the claimant was in receipt of workers compensation payments.

18.  The claimant clearly indicates that he was undertaking some casual work in the local area in the two years prior to the motor vehicle accident although it is unclear as to whether this was a period of 26 weeks.

19.  AFW has also requested a business plan be prepared on his behalf for a business to be known as “XXXX” but it would appear that that business was never commenced.

20.  Based upon that it is not clear to me whether AFW was or was not an earner in that period.

21.  I cannot therefore be satisfied that the claimant was an earner.

22.  The provisions of Schedule 2(1) Clause 1(a) of the Act provide that a Merit Reviewer is able only to make a determination as to the amount of weekly payments of statutory benefits.

23.  The insurer’s decision and that of the Internal Reviewer was that the claimant was not an earner and therefore not entitled to weekly payments of statutory benefits.

24.  In my view it is not for a Merit Reviewer to consider whether a claimant is entitled to weekly payments of statutory benefits at all.

25.  A Merit Reviewer can only make the decision of what that amount should be.

26.  Whether the claimant was or was not an earner is irrelevant to making a decision as to that amount.

27.  It is my determination in this matter that amount is $0.

Documents and Information

28.  I have considered all documentation attached to the application and to the insurer’s reply.

29.  I have considered the insurer’s submissions and the documentation provided by AFW, particularly his letter incorrectly dated 2 December 2017.

Submissions

30.  The insurer’s submissions were that the claimant was not an earner in accordance with the Act and was therefore not entitled to recover weekly payments of statutory benefits.

31.  AFW did not provide submissions.

32.  His letter of 2 December 2017 (2018) indicates that he had done some work prior to the first accident in October 2016 and had sought to prepare a business plan for a business to be known as XXXX.

Legislation

33.  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

34.  As indicated I cannot satisfied on the evidence that AFW was an earner in at least the two years prior to the motor vehicle accident or alternately, that he had formed the intention to enter into self-employment at the time of the motor vehicle accident.

35.  The types of matters for consideration by way of Merit Review are contained within schedule 2(1) clause 1 of the Motor Accident Injuries Act 2017.

36.  The particular dispute in this matter falls for consideration under Schedule 2(1) clause 1(a) being the amount of statutory benefits under Division 3.3 of the Act, ie weekly payments of statutory benefits to injured persons.

37.  Section 3.6 and 3.7 of the Motor Accidents Injuries Act provide that any earner who suffers a partial or total loss of earnings is entitled to weekly payments of statutory benefits.

38.  Those benefits are to be calculated by comparison between the person’s pre-accident weekly earnings and post-accident weekly earnings.

39.  Pre accident weekly earnings are defined at Schedule 1 Clause 4 (1) as:

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.

40.  In this case, AFW has indicated that he earned nothing in the 12 months prior to the motor vehicle accident.

41.  Therefore, despite his possible intention to enter into employment and his possible earnings in 2016, he earned nothing between 12 October 2016 and the date of this accident on 2 December 2017.

42.  Therefore his pre-accident weekly earnings as defined in Schedule 1 Clause 4 are zero.

43.  It is therefore my determination that the amount of weekly payments for statutory benefits available to AFW is $0.

Legal Costs

44.  I make no determination that any legal costs are payable to the other party.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is varied as follows:
o  Weekly payments of statutory benefits are determined to be $0.
  • Effective Date: This determination takes effect on 12 September 2019.

Nicholas Delfendahl
Merit Reviewer, Dispute Resolution Service