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AHU v QBE Insurance (Australia) Limited [2019] NSWDRS MR 208

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Merit Review
CatchwordsPAWE – weekly payments of statutory benefits – age pension – retirement – self-employed farmer – self-employed partnership with spouse – livestock farmer – wages impacted by environmental factors – ATO Notice of Assessment – personal exertion – earner
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.13(2), 7.12(1), 7.13(4), div 3.3, Schedule 1 clause 3(b), Schedule 1 clause 4(1), Schedule 2(1)(a)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 
Social Security Act 1991 (Cth)
Cases cited

N/A

Text cited N/A
Parties AHU– Claimant
QBE Insurance (Australia) Limited – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

Background

1.   The Claimant, AHU, was injured in a motor accident at Wee Waa, NSW on 23 May 2019. There is a dispute between the Insurer and the Claimant in respect of the amount of weekly payments of statutory benefits payable to her under the Motor Accidents Injuries Act 2017 (weekly payments of statutory benefits to injured persons). Section 3.13(2) of the Act caps the Claimant’s entitlement to weekly payments at 12 months because she was injured after her retirement age (DOB XX XX 1941), being the age she was eligible to receive age pension under the Social Security Act 1991 (Commonwealth), which she has already attained.

2.   The Insurer advised that AHU’s claim for weekly statutory benefits had been accepted in respect of the accident. The Claimant’s weekly payments of statutory benefits were calculated on the basis that her Pre-Accident Weekly Earnings (PAWE) rate is $242.46 and covered the entitlement to weekly payments of statutory benefits payable to her from the date of accident, 23 May 2019.

3.   The Insurer determined that this was the applicable rate for the Claimant’s PAWE based on her yearly income in the 2019 financial year of $12,608 / 52 weeks or $242.46 per week and notified the Claimant of its decision.

4.   The Claimant disputed the PAWE of $242.46 and requested a re-evaluation on the following basis:

“… Because it is unfair the wages have been calculated based on a year which was severely impacted on by drought and is not reflective of a typical income earning year. My husband and I are self-employed in a farming enterprise and 2018 and 2019 were very low earning years due to the ongoing drought. Requested outcome - I would like you to calculate the average weekly earnings based on the average of the annual income returns for 2017, 2016 and 2015 in which these years were not so adversely affected by drought. Thus if you look at the calculations, I should receive $511.67 per week. …”

5.   The Claimant sought an internal review by the Insurer on 8 October 2019 and subsequently, Merit Review by SIRA. She provided additional information by way of Australian Taxation Office (ATO) Notices of Assessment for the 2018 and 2019 financial years, further to material already provided to the Insurer and SIRA. On 22 October 2019 the Insurer provided the Claimant written notice of the decision of its internal review advising (inter alia) that it had reviewed the claim consultant’s initial decision together with the information available, and confirmed the Claimant’s PAWE rate had been correctly determined to be $242.46. The Insurer accordingly, issued a Certificate of Determination - Internal Review (Certificate) of that date.

6.   The Claimant disputes the Insurer’s decision and lodged an application for Merit Review with SIRA’s Dispute Resolution Service on 23 October 2019. The application has been made in accordance with section 7.12(1) of the Act and the Motor Accident Guidelines 2017 (the Guidelines).

Documents and Information

7.   I have considered the documents provided in the application and the Reply and any further information provided by the parties. This includes the Claimant’s written submissions and accompanying documents in the application dated 23 October 2019, and the Insurer’s Reply dated 29 October 2019. All these materials were sent to the Merit Reviewer on 2 December 2019 and have been considered together with the respective ATO Notices of Assessment for 2018 and 2019.

Submissions

8.    The Claimant and her spouse are a self-employed partnership as Livestock Farmers. The Claimant essentially seeks calculation of her PAWE over a range of years rather than just the prior 12 months to the motor accident as she considers her income should be averaged over a longer period when environmental conditions (and thus earnings) were more favourable than in the recent drought conditions affecting the partnership farming enterprise.

9.    The Claimant submits that the correct PAWE rate is the weekly average of the annual income returns for 2017, 2016 and 2015 equating to $511.67 per week on average over that period.

10.   The Insurer submits in reply, that the Claimant’s PAWE of $242.46 is correctly made adopting the calculations from earnings in the last financial year, 2019. The Insurer submits: for the subject accident, the drought would have continued to effect the Claimant’s earnings. While unfortunate, the Insurer submits it is not liable for adverse environmental factors.

11.   The Insurer further highlights that the Claimant’s entitlements to weekly payments are to be capped at 12 months in total as she was injured after reaching her retirement age. The Claimant is aged 78 years and the cap on 12 months payments in not disputed in any submissions made by the Claimant.

12.   A separate claim is also noted by the Claimant’s spouse as joint partner in the faming enterprise. This is the subject of a separate decision regarding disputed PAWE in that matter.

Legislation

13.   In conducting my review, I have considered the following legislation and guidelines in addition to material referred to in the Claimant’s written submissions and merit review application and the Insurer’s Reply:

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”)

14.   I turn firstly, to the issue of the Claimant’s request to average income over several years rather than the most recent 12 month period relating to the last financial year, 2019. On this point I have had regard to the applicable legislation and specifically, the definition of PAWE in the Act that relates to income derived from personal exertion.

15.   Under cl.3 Schedule 1 of the Act, ‘income from personal exertion’ does not include any investment income such as rents or dividends which are expressly excluded from the definition [Schedule 1 cl.3(b)]. It follows that any investment property income (and expenses) are not included in any calculation of the PAWE rate.

16.   Clause 4(1) of Schedule 1 of the Act defines “PAWE” as follows:

a.   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.

17.  Subclause (2) offers different methods to calculate PAWE. However, those other methods do not apply in this particular case because I accept that the Claimant was a self-employed person (in partnership with her spouse) when the motor accident occurred and she was obtaining earnings derived during the material period preceding the motor accident.

18.  I have also had regard to the SIRA Guidance Note in respect of s.3.6 and Schedule 1 of the Act relating to weekly payments of statutory benefits. Notably, Schedule 1 defines income from personal exertion to include:

  • the amount that is income of the person consisting of earnings, salary, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to services rendered, and
  • the proceeds of any business carried on by the person either alone or in partnership with any other person, (emphasis added) and
  • any amount received as bounty or subsidy in carrying on a business.

19.   I accept in this case, the Claimant derived income ‘consisting of earnings’ from the business partnership in relation to activities as a Livestock Farming enterprise for the purposes of calculating the PAWE rate.

20.   There is no referral for Merit Review of the Insurer’s decision that the Claimant is an earner who is injured as a result of a motor accident. Accordingly, there is no dispute that the Claimant is an ‘earner’ under the Act and in the submissions received. I find the Claimant is an ‘earner’ under the Act.

21.   Under clause 4(1) of Schedule 1, the Claimant’s PAWE is the weekly average of her gross earnings received as an ‘earner’ during the 12 months immediately before the day on which the motor accident occurred (the relevant period). As the motor accident occurred on 23 May 2019, the relevant period therefore, is the 12 months from 23 May 2018 to 22 May 2019.

22.   During the relevant period, the Claimant received earnings as a self-employed farmer in the partnership business performing the tasks of a Livestock Farmer together with her spouse. I have treated the partnership with equal distribution of share of income to each partner evident from the financial records available to me. I am therefore, satisfied that earnings derived from this farming work are from the Claimant’s personal exertion in carrying out that business within the partnership.

23.   The legislation does not provide for averaging of income over greater that 12 months immediately prior to the motor accident in circumstances such as those raised by the Claimant. Accordingly, I must consider the income in the relevant 12 month period prior to the motor accident. The Claimant’s ATO Notices of Assessment show she earned $15,720 in 2018 and $12,608 in 2019. The application documents and the Claimant’s ATO Notices of Assessment show that in the material 12 months from 23 May 2018 to 22 May 2019 the Claimant derived the following income calculated on a pro-rata basis:

CALCULATION

  • 2018 - being 39 days @ $15,720pa from 23 May 2018 to 30 June 2018 = $1,679.67
PLUS
  • 2019 - being 326 days @ $12,608 from 1 July to 22 May 2019 = $11,260.84
For the 12 months immediately before the motor accident:                                Total = $12,940.51

24.   In the relevant 12-month period, the Claimant received the aggregate sum of $12,940.51 from self-employment. This equates to $248.86 per week ($12,940.51 / 52 weeks).

25.   Therefore, the Claimant’s PAWE in accordance with the Act are calculated at $248.86.

Conclusion

26.   The review decision referred for merit review by the Claimant relates to the amount of her Pre- Accident Weekly Earnings and the decision covers weekly payments of statutory benefits payable by the Insurer to the Claimant from the date of accident and in this particular case, for a period capped at 12 months maximum, given her post retirement age of 78 years.

27.   It is the function of the Dispute Resolution Service on Merit Review to arrive at the correct or preferable decision in respect of the period covered by the reviewable decision that is referred for review. Accordingly, this determination applies to weekly payments of statutory benefits from the day of the accident being 23 May 2019. The Insurer is to pay the Claimant the difference between what has been paid to the Claimant and what she is entitled to be paid in accordance with this decision of PAWE calculated at $248.86.

Legal Costs

28.   There is no dispute presented between the Claimant and the Insurer in respect of recovery of any legal costs under section 8.10 of the Act. There is no submission that the Claimant is under a legal disability or that exceptional circumstances exist that justify payment of legal costs incurred in this case. Accordingly, I make no order as to costs.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is varied as follows: in substitution for the reviewable decision:
o  The amount of the Claimant’s Pre-Accident Average Weekly Earnings is $248.86
  • Effective Date: This determination takes effect from 20 December 2019.
  • Legal Costs: No order as to costs.

Stavros Georgiadis
Merit Reviewer, SIRA - Dispute Resolution Service