Vivolo v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 30 (18 May 2022)

Last Updated: 25 May 2022

Background

1. There is a dispute between Alessio Vivolo (the claimant) and the insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act.

2. The claimant was injured in a motor vehicle accident on 9 July 2020.

3. At date of accident the claimant was a self-employed Uber Eats driver.

4. During the relevant period, that is, in the 12 months immediately before the day on which the motor accident occurred, the claimant also received income from Brush Brothers, Dino & David Enterprises and Eternal Air Pty Limited.

5. On 13 August 2020 the claimant lodged an application for personal injury benefits.

6. On 24 September 2020 the insurer determined that the claimant’s pre-accident weekly earnings (PAWE) under Division 3.3 of the Act was $498.06.

7. The claimant did not agree with this determination and on 9 October 2020 the claimant lodged an application for Internal Review.

8. The insurer conducted an internal review and an Internal Review Certificate was issued on 5 November 2020.

9. The Internal Review Certificate varied the original decision and determined that the claimant’s PAWE was $519.16.

10. The claimant disputes the insurer’s decision and lodged an application for Merit Review with the Personal Injury Commission (Commission) on 28 April 2022.

11. The application for Merit Review was lodged in accordance with section 7.12(1) of the Act and the Motor Accident Guidelines (the Guidelines).

Submissions

12. The claimant submits:

13. That the insurer’s PAWE calculation is incorrect.

14. The claimant has not stated what he considers to be the correct PAWE. Nor has he provided any submissions or further evidence.

15. The claimant’s solicitor, in correspondence dated 28 January 2021, submitted that they agreed with the insurer’s calculation of gross earnings received from two sources being: Brush Brothers and Dino and David Enterprises.

16. The claimant’s solicitor further submitted that the insurer failed to properly calculate earnings received from Eternal Air Pty Limited.

17. That gross earnings from Uber were not properly calculated and that service fees should not be deducted.

18. I note the claimant is no longer legally represented.

19. The insurer submits:

20. The claimant’s PAWE is $519.16 and that this should be affirmed.

21. The insurer relies on the reasons set out in its internal review determination as well as the report of PFK Accounting dated 21 September 2020.

22. That the claimant’s application for merit review is out of time and should be dismissed pursuant to section 7.12(9) of the Act and clause 7.34 of the Guidelines.

Reasons

The Application for Dismissal

23. The insurer submits that the claimant’s application for merit review is out of time and should be dismissed.

24. Clause 7.34 of the Guidelines make it clear that an application for merit review should be made within 28 days of the claimant receiving the insurer’s internal review decision.

25. The internal review determination was made on 5 November 2020.

26. The claimant’s application for merit review was not lodged until 28 April 2022 which is more than 28 days since the claimant received the insurer’s internal review decision.

27. Clause 7.35 of the Guidelines states:

(a) These time limits do not apply if a merit reviewer determines that it would best promote the objects of the Act to dispense with the time limit.

28. I do not intend to dismiss the application for merit review. I’m satisfied that in dispensing with the time limits it would promote the objects of the Act. Specifically, section 1.3(2)(g) which promotes the early resolution, quick, cost effective and just resolution of disputes. Section 1.3(2)(g) provides as follows:

(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes,

The claimant’s PAWE

29. There is no dispute that the claimant was an ‘earner’ for the purposes of Division 3.3 of the Act.

30. Nor is there a dispute that the claimant is entitled to weekly benefits under Division 3.3 of the Act.

31. The dispute is limited to the claimant’s pre-accident weekly benefits or PAWE.

32. The definition of pre-accident weekly earnings or PAWE can be found in Schedule 1 of the Act and is defined as the average weekly gross earnings of the earner in the 12 months immediately preceding the accident.

33. Clause 4 of Schedule 1 provides as follows:

4 MEANING OF "PRE-ACCIDENT WEEKLY EARNINGS"--GENERAL

1. (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. (2) In the following cases,
   
   "pre-accident weekly earnings" , in relation to an earner who is injured as a result of a motor accident, means--
3. (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,
4. (a1) if the earner was employed or self-employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period, but was not obtaining earnings from any source at any other time during the pre-accident period--the average weekly gross earnings received by the earner as an earner during the first year of the pre-accident period,
5. (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,
6. (c) if the earner is an earner by reason of having entered into an arrangement with an employer or other person to undertake employment or to commence business as a self-employed person--the average weekly gross earnings that the earner could reasonably have been expected to earn, but for the injury, in employment under that arrangement.
7. (2A) The
   
   "pre-accident period" , in relation to a motor accident, is the period of 2 years immediately preceding the motor accident.
8. (3) This subclause applies if, during the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred.
9. Note : Examples of a change of circumstances to which this subclause would apply include a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards.
10. (4) For the purposes of this clause, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the day of the motor accident, was likely to continue for a period of at least 6 months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were being provided as at that day.

34. The claimant’s PAWE is to be calculated under clause 4(1) of Schedule 1 of the Act as there is no evidence to suggest any of the exceptions in sub-clause 2 of clause 4 apply to the claimant’s circumstances. In addition, there is no evidence to suggest sub-clause 3 of clause 4 applies to the claimant’s circumstances.

35. At date of accident the claimant was a self-employed Uber Eats driver operating under an ABN. He also received income as a wage earner from two other employers.

36. The insurer initially determined the PAWE to be $498.06. Following the internal review it was varied to $519.16.

37. There is no dispute regarding gross earnings received from Brush Brothers and Dino & David Enterprises in the amounts of $11,076 and $585 respectively.

38. In relation to earnings from Uber the claimant has disputed the amount of business expenses deducted.

39. The claimant provided a list of business expenses that included: fuel; scooter rental, telephone expenses and meal expenses.

40. The claimant objected to the Uber service fees in the sum of $4,054 being deducted.

41. At the insurer’s request the claimant provided numerous documents to the insurer including pay slips, his income tax return for the year ending 30 June 2020, Uber tax summaries, bank statements, invoices, a list of expenses and the 2020 Uber Earnings Summary.

42. In determining the claimant’s Uber income PFK compared bank deposits with Uber summaries provided and found a discrepancy to the extent that the bank deposits produced a lower figure than the Uber summaries. PFK decided to adopt the higher figure from the Uber summaries and assessed the income accordingly.

43. In assessing the claimant’s gross earnings as a self-employed Uber Eats driver, PFK deducted the claimant’s business expenses, including Uber service fees.

44. With respect to the deduction of business expenses, the approach taken was consistent with AHS v Allianz Australia Ltd [2019] NSWDRS MR 206, where it was determined that the meaning of “gross earnings” is accepted to mean income after the deduction of all business and/or work-related expenses before tax.

45. I’m therefore satisfied that the insurer has correctly assessed the claimant’s earnings with respect to his earnings as an Uber Eats driver.

46. In relation to income received from Eternal Air Pty Limited the claimant provided payslips from 19 May 2019 until 22 September 2019.

47. In accordance with clause 4(1) of Schedule 1, PAWE is to be calculated by dividing the gross earnings received in the 12 months immediately before the day on which the motor accident occurred and dividing it by 52.

48. The 12 months before the subject accident is 9 July 2019 until 8 July 2020.

49. The definition of pre-accident weekly earnings or PAWE can be found in Schedule 1 of the Act and is defined as the average weekly gross earnings of the earner in the 12 months immediately preceding the accident.

50. As a result, any payslips from Eternal Air Pty Limited that predate 9 July 2019 cannot be considered as they do not fall within the relevant period.

51. PFK initially considered payslips from 14 July 2019 until 22 September 2019.

52. The claimant’s then solicitor argued that the insurer failed to consider earnings from 9 July 2019 until 13 July 2019 which they calculated would total $783.75.

53. The insurer, as part of the internal review, agreed with the claimant solicitor’s submission regarding earnings from Eternal Air for the period 9 July 2019 until 13 July 2019 and revised their calculation to include this figure.

54. I’m therefore satisfied that the insurer has correctly calculated the claimant’s PAWE.

Conclusion

55. The reviewable decision is:

(a) affirmed

56. The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0.00 inclusive of GST.

Legislation and Guidelines

57. In making this decision, I have considered the following:

• The application, reply and supporting documentation;
• Motor Accident Injuries Act 2017 (NSW) (the Act), and
• Motor Accident Guidelines.

Michael Sofoulis

Merit Reviewer

Personal Injury Commission