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AFX v AAMI [2019] NSWDRS MR 152

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsWeekly payments of statutory benefits – earning capacity – certificate of fitness – Uber – Uber eats delivery driver – PAWE – pre-accident weekly earnings – post-accident weekly earnings
Legislation citedMotor Accidents Injury Act (NSW) ss 3.7, 3.7(2)(b), 7.13(4), div 3.3, Schedule 1 clause 8(1)(a), Schedule 2 clause 1(a)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 
Cases cited

N/A

Text citedN/A
Parties AFX - Claimant
AAMI  - 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, AFX 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.  On 19 August 2018, the Claimant was involved in a motor vehicle accident. She sustained injuries as a result of the accident.

3.  At the time of the motor vehicle accident the Claimant was employed as an Uber- partner driver, where she reportedly earned $950 per week (A1).

4.  On 8 January 2019, the Insurer wrote to the Claimant advising that her weekly entitlement of statutory benefits was determined at $257.20. The Insurer informed the Claimant that her earning capacity from 2 January 2019 was assessed at 24 hours. In this determination the Insurer relied on the Certificate of Fitness dated 11 December 2018, completed by the Claimant’s treating general practitioner Dr Helou, who certified that the Claimant had capacity for some type of work from 2 January 2019 up to 8 hours per day and 3 days per week, with some limitations and restrictions.

5.  The Claimant’s legal representative disagreed with the Insurer’s determination and requested an internal review of the Insurer’s decision on 24 January 2019.

6.  The Insurer failed to complete the Internal Review in time and on 12 March 2019 (A4) invited the Claimant to lodge a Merit Review Application for an independent review of the Insurer’s decision with the Dispute Resolution Services (DRS).

7.  On 7 May 2019, the Claimant made an application to the Dispute Resolution Service (DRS) for a determination of the merit review matter, seeking a determination that the Insurer’s reviewable decision was incorrect.

8.  The parties exchanged additional evidence and submissions in clarifying their respective positions.

9.  The parties clarified that the dispute before me relates to calculations and the amount of weekly payments of statutory benefits payable to the Claimant under Division 3.3 and most relevantly under section 3.7 for the period 2 January 2019 to 10 February 2019.

Documents and Information

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

Submissions

11.  The Claimant submits that the Insurer’s decision dated 8 January 2019 is incorrect and should be overturned as the Insurer erred in the calculation of the Claimant’s entitlement to weekly compensation and most relevantly erred in the assessment of her post-accident earning capacity in the period 2 January 2019 to 10 February 2019.

12.  The Insurer disagrees with the Claimant’s assertion that she had no earning capacity during the period starting from 2 January 2019 to 10 February 2019. The Insurer maintains that the Claimant was paid $257.29 per week during the above period, based on the Claimant’s certified earning capacity of 24 hours per week in accordance with Dr Helou’s Certificate of Fitness dated 11 December 2018.

13.  Both parties note Dr Helou’s subsequent Certificate of Fitness dated 16 January 2019, where the Claimant was certified fit for 6 hours a day and 3 days per week, with certain restrictions. The parties fail to elaborate on the significance of Dr Helou’s certificate and the Claimant’s reduced earning capacity of 18 hours per week for the  remainder of the  period in dispute, i.e. from   16 January 2019 to 10 February 2019.

Legislation

14.  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

Evidence

15.  The evidence attached in support of the merit review suggests that the Claimant’s pre accident weekly earnings have been assessed at $757.39 (A2). The Claimant also adopts this amount.

16.  On 8 January 2019, the Insurer wrote to the Claimant advising that her weekly entitlement to statutory benefits was determined at $257.20. The Insurer relied on the Certificate of Fitness dated 11 December 2018 completed by the Claimant’s treating general practitioner Dr Helou (A5).

17.  The doctor certified that the Claimant had no current capacity for any work from 27 November 2018 to 1 January 2019, and that she had a capacity for some type of work from 2 January 2019 for 8 hours a day and 3 days a week. The doctor also indicated the factors affecting recovery include “ongoing pain Left hand, PTSD” and outlined certain restrictions concerning lifting and carrying capacity and ability to drive locally.

18.  The Insurer determined the Claimant’s weekly certified earning capacity at 24 hours for some type of work from 2 January 2019, in accordance with the Certificate for Fitness completed by Dr Helou.

19.  I also note the Certificate of Fitness dated 16 January 2019, completed by the Claimant’s treating general practitioner Dr Helou (A6). The doctor certified that the Claimant had a capacity for some type of work from 16 January 2019 for 6 hours a day and 3 days a week. The doctor also indicated the factors affecting recovery include “ongoing pain (L) hand, PTSD, pain neck & Back”.

20.  The Claimant’s legal representative disagreed with the Insurer’s determination and requested an internal review of the Insurer’s decision on 24 January 2019.

21.  The Insurer failed to complete the Internal Review in time and on 12 March 2019 (A4), the Insurer invited the Claimant to apply to DRS for an independent review of its reviewable decision dated 8 January 2019(A4).

22.  The parties exchanged additional evidence and submissions in clarifying their respective positions. The parties clarified that the dispute before me relates to the calculations of the weekly payments for the period 2 January 2019 to 10 February 2019 only.

23.  The Claimant submits that the Insurer erred in the calculation of the Claimant’s entitlement to weekly compensation and most relevantly erred in the assessment of her post -accident earning capacity in the period 2 January 2019 to 10 February 2019. The Claimant’s submissions, to the extent relevant, are extracted as follows:

“It is the Claimant’s assertion that when the Insurer is calculating an entitlement to weekly compensation and more importantly, her post-accident earning capacity, they are only to assess her capacity to earn in the employment in which she was engaged immediately before the motor accident. I note this is the case for the first and second entitlement period in accordance with Schedule 1, clause 8 of the Motor Accidents Injuries Act 2017 (NSW). The Insurer has failed to undertake this assessment in their decision of 8 January 2019, they have provided no evidence and no commentary in respect of their assertion that the Claimant has a capacity to work 24 hours per week in her pre-accident employment."

24.  On 17 May 2019, the Insurer requested a deferral of the merit review dispute, seeking time to arrange an ADL assessment to clarify the discrepancy relating to the Claimant’s work capacity. The Insurer preferred to obtain an independent opinion on the issue, noting that the Claimant had been certified as fit for work 24 hours per week, by her nominated treating doctor, although the Claimant had asserted that she cannot work 24 hours in the pre-motor accidents capacity as an Uber driver.

25.  The Claimant indicated her willingness to wait for the report on 28 May 2019.

26.  The Insurer relied on Dr Helou’s report dated 26 July 2019. The doctor reported that the Claimant’s current work capacity was for 6 hours a day, 3 days a week and that she can drive short distances. The doctor also noted that even if the Claimant was physically able to do longer hours, she was not keen to return to Uber driving role.

27.  Dr  Han  Than,  Occupational   Physician,   reported   for   the   Insurer   on   6   August   2019.  Dr Than did not assess the Claimant. The doctor provided a comprehensive review of the medical evidence available to improve the Insurer’s case strategy assistance with the upgrade of the Claimant’s duties. Dr Than  reported  contacting  the  Claimant’s treating  doctor  Dr  Helou on 6 August 2019, to discuss the Claimant’s upgrade of work hours and duties and to understand her return to work barriers.

28.  Dr Helou reportedly agreed that the Claimant was fit to drive full time hours, but he was unable to certify the Claimant as fit for full time duties and hours citing that the Claimant had no desire to return to the driving role.

29.  Dr Than opined that the Claimant had recovered reasonably well following her motor vehicle accident and that at the time of the report she was fit to return to work as a full time Uber driver.

30.  I do note that Dr Than’s and Dr Helou’s opinions about the Claimant’s capacity for pre-accident hours predominantly address the Claimant’s fitness for work status at the time of the assessment and fail to fully explore and address her capacity to work in the period 2 January 2019 to 10 February 2019.

31.  I note the Insurer’s submission dated 6 August 2019 and 23 August 2019. The Insurer confirmed that the following:

a.  The Claimant’s pre-accident weekly earnings (PAWE) for the period 2 January 2019 to 10 February 2019 was assessed at $757.39.

b.  The Claimant was paid $257.29 per week during the above period. This amount was paid on the basis of the Claimant’s certified earning capacity of 24 hours per week, which was equivalent to $454.80 per week.

c.  The Insurer also submitted that the Claimant had advised the Claims Advisor on 7 January 2019 that she was unable to work as an Uber driver as Uber did not permit her to use her vehicle due to its age. Apparently, Uber imposes a restriction on their partner drivers which prevents them from driving a vehicle which is more than 10 years old. The Claimant also stipulated that she could not work as an Uber driver as it was physically demanding.

32.  The Insurer noted that the Claimant reportedly commenced work as an Uber Eats delivery driver from 11 February 2019. The Insurer submitted that this work was more physically demanding than that of the Uber driver.

33.  Lastly, the Insurer noted that as at 18 March 2019 the Claimant advised of having ceased working as an Uber Eats delivery driver due to a work trial with Woolworths, where she reportedly commenced working in a part -time position as a sales assistant on 9 April 2019.

34.  The Insurer relies on Dr Helou’s Certificate of Fitness dated 16 January 2019 (A6) in determining the Claimant’s capacity for work. Dr Helou certified the Claimant as fit for work for 18 hours per week from 16 January 2019 and ongoing.

35.  The Insurer also asserted that the Claimant was being paid the difference between the Claimant’s PAWE of $766 and her income derived from Woolworths. I note that those weekly entitlements are not the subject of the present review application.

36.  The Claimant disagreed with the Insurer’s assessment of her weekly payments. As at 7 August 2019, the Claimant sought a back pay of $348.71 per week for the period 2 January 2019 to 10 February 2019. The backpay amount is calculated on the basis of the Claimant having a total loss of earning capacity under section 3.7(2)(a) of the Act.

37.  As at 23 August 2019, the Claimant clarified that the Insurer misinterpreted the Claimant’s submission, noting that it was not her assertion that she had no earning capacity during the period in dispute but that “she did not have the capacity to earn in the employment in which she was engaged in immediately prior to the accident”.

38.  The Claimant also observed that Dr Than’s opinion cannot be considered as contemporaneous evidence of the Claimant’s earning capacity for the period in dispute.

39.  As is evident, the present dispute relates to the Claimant’s weekly payments during the second entitlement period (i.e. weeks 14-78 after the motor accident). Section3.7(2) of the Act provides a formula for calculation of the weekly payments as follows:

3.7  Weekly payments during second entitlement period (weeks 14-78 after motor accident)

(2)  A weekly payment of statutory benefits under this section is to be at the rate of:

(a)  in the case of total loss of earning capacity--80%, or

(b)  in the case of partial loss of earning capacity--85%,

of the difference between the person's pre-accident weekly earnings and the person's post- accident earning capacity (if any) after the first entitlement period.

40.  The ‘post-accident earning capacity’ is defined under Schedule 1, clause 8 (1)(a) in the following terms :

8 Meaning of "post-accident earning capacity"

(1)  "Post-accident earning capacity" of an injured person means:

(a)  for the first and second entitlement periods-the weekly amount that the person has the capacity to earn in the employment in which the person was engaged immediately before the motor accident, determined on the basis of the person's fitness for work in that employment,

41.  The relevant criteria that need to be assessed when determining the injured person’s fitness for work during the first and second entitlement period are identified under Schedule 1, clause 8(2), as follows:

“A person's fitness for work during the first and second entitlement periods is to be determined having regard to the following:
(a)  the nature of the injury and the likely process of recovery,

(b)  treatment  and rehabilitation needs,  including  the  likelihood  that  treatment  or rehabilitation will enhance earning capacity and any temporary incapacity that may result from treatment,

(c)   any earnings of the person in any employment engaged in  by the person after  the motor accident,

(d)  any medical certificate provided by the injured person as to the person's fitness for work.

42.  Based on my review of the evidence available, I am not persuaded that the Claimant experienced total loss of earning capacity in the period 1 January 2019 to 10 February 2019.

43.  I note the Claimant’s criticism about the Insurer’s reported failure to appropriately assess the Claimant’s post-accident earning capacity. The Claimant submits that no assessment as to her capacity to earn in the pre-motor accident employment was undertaken, and no evidence and no commentary was provided by the Insurer in respect of the decision that the Claimant has a capacity to work 24 hours per week in her pre-accident employment. I do not consider that the evidence available supports the Claimant’s proposition.

44.  I find that the Insurer’s determination dated 8 January 2019 as to the Claimant’s post-accident earning capacity is consistent with and adopts Dr Helou’s findings about the Claimant’s fitness for work during the second entitlement period (A5).

45.  I also note that Dr Helou’s Certificate of Fitness dated 11 December 2018 (A5) specifically addressed the Claimant’s capacity to work in her pre-accident employment role by outlining her driving tolerances and limitations. As such, I am not persuaded by the Claimant’s assertions that the restrictions and limitations identified by the treating doctor, such as restrictions in respect of lifting or carrying or ability to drive locally and for reduced hours, are to be accepted in support of a finding of a total loss of the post-accident earning capacity in relation to the pre- accident employment, or at all.

46.  I find Dr Helou’s opinion to be persuasive given that the doctor has been the Claimant’s treating practitioner for some time and has had the opportunity to regularly review her progress and her capacity to work.

47.  As noted previously, I find that the opinion of Dr Than is not particularly helpful, as it fails to address the Claimant’s post-accident earning capacity for the period 2 January 2019 to 10 February 2019.

48.  Accordingly, I find that the  Claimant’s  earning  capacity  for  the  period  2  January  2019  to 15 January 2019 is determined at 24 hours per week, consistent with the Insurer’s decision dated 8 January 2019. As such, I find that the Claimant’s entitlement to weekly payments of statutory benefits for the period 2 January 2019 to 15 January 2019 is to be affirmed at the weekly rate of $257.20.

49.  I further note Dr Helou’s Certificate dated 16 January 2019 (A6) reduced the Claimant’s post- accident earning capacity to 18  hours  per  week,  or 6  hours per  day  3  days a  week  from  16 January 2019. The evidence before me does not suggest that Dr Helou’s revised opinion about the Claimant’s reduced fitness for work was taken into account when determining the Claimant’s weekly payments for the period 16 January 2019 to 10 February 2019.

50.  I further find that the Claimant’ earning capacity for the remainder of the period in dispute, from 16 January 2019 to 10 February 2019, is to be assessed at 18 hours per week as certified by Dr Helou, in his subsequent Certificate of Fitness of 16 January 2019.

51.  The Claimant’s entitlement to weekly payments of statutory benefits for the period 16 January 2019 to 10 February 2019 ought to be calculated and paid in accordance with section 3.7(2)(b) of the Act.

52.  The Claimant’s weekly payments of statutory benefits  for  the  period  16  January  2019  to 10 February 2019 are assessed at the weekly rate of $354.15, calculated as follows:

a.  The Claimant’s pre-accident weekly earnings of $757.39 translate to an hourly rate of $18.93. Accordingly, the Claimant’s post-accident earning capacity of 18 hours per week amounts to $340.24.

b.   The post-accident earning capacity ($340.24) is to be deducted from the pre-accident weekly earnings ($757.39) thus resulting in the difference of $416.65.

c.   A weekly payment of statutory benefits in the case of partial loss of earning capacity is to be calculated at 85% of the difference of $416.65, totalling $354.14.

53.  The most just and expeditious manner of determining the amount to be repaid to the Claimant will be to set aside the reviewable decision dated 8 January 2019 with a direction that the amount payable to the Claimant under Division 3.3 must conform to the requirements of section 3.7(2)(b) of the Act.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision dated 8 January 2019 is set aside, and the following decision is made in substitution for the reviewable decision:
o   The Claimant’s entitlement to weekly payments of statutory benefits for the period  2 January 2019 to 10 February 2019 is to be assessed in accordance with section 3.7(2)(b) of the Act.

o  The Claimant’s entitlement to weekly payments of statutory benefits for the period 2 January 2019 to 15 January 2019 is affirmed at the weekly rate of $257.20.

o   The Claimant’s entitlement to weekly payments of statutory benefits for the period 16 January 2019 to 10 February 2019 is assessed at the weekly rate of $354.15.

  • Effective Date: This determination has effect from 2 January 2019 to 10 February 2019.

Ana Jaglic
Merit Reviewer, Dispute Resolution Service