CERTIFICATE OF DETERMINATION OF MERIT REVIEWER	
	
Citation:	Younis v AAI Limited t/as AAMI [2023] NSWPICMR 35	
		
ClaimanT:	Younis Younis	
		
Insurer:	AAI Limited t/as AAMI	
		
Merit Reviewer:	Katherine Ruschen	
		
DATE OF DECISION:	11 July 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about weekly payment of statutory benefits under Division 3.3; dispute about post-accident earnings; compliance with sections 3.15 and 3.19; suspension of payments of weekly statutory benefits; declaration of employment; Division 6.6; veracity of evidence; credibility; duty of disclosure and to act honestly and not mislead; sections 6.3 and 6.24; compliance with directions; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; power to dismiss proceedings; Held – the application for a merit review is dismissed.

Determinations made: 	CERTIFICATE
Issued under s 7.13(4) of the Motor Accident Injuries Act 2017
DETERMINATION
The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act.
1.	Pursuant to s 54(c) of the Personal Injury Commission Act 2020 and rule 77(b)(ii) and/or in the alternative, rule 77(b)(iii) of the Personal Injury Commission Rules the application for a merit review is dismissed.

STATEMENT OF REASONS
introduction
1.	There is a dispute between Younis Younis (the claimant) and the insurer about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
2.	The claimant was involved in a motor accident on 15 November 2021.
3.	On 31 March 2023 the insurer issued a determination suspending the claimant’s entitlement to payment of weekly benefits under the MAI Act on the basis the insurer had determined the claimant had provided false declarations as to whether or not he had engaged in any employment after the motor accident.
4.	The claimant requested an internal review of the insurer’s 31 March 2023 decision.
5.	On 17 April 2023 the insurer issued their internal review decision in which the insurer affirmed their decision to suspend payment of weekly benefits.
6.	The claimant has requested a merit review of the insurer’s internal review decision dated 17 April 2023.
SUBMISSIONS  
7.	The claimant submits he remains unfit for work and that suspension of payment of weekly benefits by the insurer is “because of a misunderstanding”. The claimant contends that information provided by his employer to the insurer to the effect the claimant had returned to work was false. The claimant submits his employer has been in further contact with the insurer to correct the false information previously provided (although there is no evidence of this). On this basis, the claimant submits payment of weekly benefits should be reinstated.
8.	The insurer submits the evidence indicates the claimant undertook employment during a period following the motor accident, failed to disclose this to the insurer and has provided false declarations to the effect he has not participated in any employment during that period. 
9.	The insurer relies on information provided by the employer that the clamant had returned to work whilst continuing to receive payment of weekly benefits.
10.	The insurer submits the claimant has failed to comply with s 3.15(1)(b) of the MAI Act and that s 3.15(6) provides the insurer is not required to make payments of statutory benefits until the claimant has complied with the requirements. 
11.	The insurer also notes anomalies and inconsistencies in the evidence which gives rise to concerns in relation to the legitimacy of the claim.
12.	The insurer contends that pursuant to s 3.19(5) and/or s 3.19(7) it is not required to give notice of suspension of payment of weekly benefits in the circumstances.
13.	The insurer further submits the claimant’s completion of declarations stating he had not engaged in any form of paid employment amounts to false and misleading conduct with the outcome being the claimant continued to be paid statutory weekly benefits when he was not entitled to same. The insurer submits the conduct is for the purpose of obtaining financial benefit and that in those circumstances, 
s 6.42(2)(a) relieves the insurer from liability to make payments to the claimant. 
REASONS 
Legislation 
14.	The claimant’s weekly benefits were suspended on the basis the claimant did not comply with s 3.15 of the Act on the basis the insurer contends the claimant’s declarations as to employment required under s 3.15 were false.
15.	Section 3.15(1)(b) of the MAI Act relevantly provides that the claimant must provide to the insurer:
“a declaration in accordance with the Motor Accident Guidelines as to whether or not the person is engaged in any form of employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section.”
16.	Pursuant to s 3.15(6) the insurer is not required to make weekly payments of statutory benefits to the claimant until he has complied with, among other things, s 3.15(1)(b). If the claimant fails to comply with the requirement under s 3.15(1)(b) within seven days, the insurer may suspend payment of weekly benefits under s 3.15(7) for the period the failure to comply continues. Pursuant to s 3.15(8) the claimant forfeits his entitlement to payment of weekly benefits during the suspension period.
17.	Section 3.19 of the MAI Act requires the insurer to provide a specified notice period to the claimant before reducing or discontinuing payment of weekly benefits. However, pursuant to s 3.19(7) the notice periods required under s 3.19 do not apply to suspension of payment of weekly benefits under a provision of the MAI Act. 
18.	This matter involves suspension of weekly benefits and accordingly, the insurer is not required to comply with the notice periods in s 3.19.  
19.	The insurer raises the issue of provision of false or misleading information by the claimant. Section 6.3 of the MAI Act provides that the claimant has a duty to the insurer to act with good faith in connection with the claim and that the claimant’s duties in this regard include:
(a)	a duty to act honestly and not mislead;
(b)	a duty to disclose all relevant information in a timely manner, and
(c)	a duty to promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim.
20.	Division 6.6 of the MAI Act is also relevant to this matter. Division 6.6 deals with fraud in relation to claims and relevantly provides, among other things, at s 6.40:
“A person who makes a statement knowing that it is false or misleading in a material particular--
(a) in a notice of a claim given to a person or an insurer under this Act, or
(b) in the course of a review or assessment under Part 7 in relation to a claim, or
(c) when otherwise furnishing information to any person concerning a motor accident or any claim relating to a motor accident,
is guilty of an offence.”
21.	Section 6.42 provides for a remedy to the insurer in connection with a fraudulent claim as follows:
“(1) This section applies to a claimant or insurer if it is established that, for the purpose of obtaining a financial benefit, the claimant or insurer did or omitted to do anything (including the making of a statement) concerning a motor accident or any claim relating to a motor accident with knowledge that the doing of the thing or the omission to do the thing was false or misleading.
(2) If this section applies to a claimant--
(a) a person who has a liability in respect of a payment, settlement, compromise or judgment relating to the claim is relieved from that liability to the extent of the financial benefit so obtained by the claimant, and
(b) a person who has paid an amount to the claimant in connection with the claim (whether under a settlement, compromise or judgment, or otherwise) is entitled to recover from the claimant the amount of the financial benefit so obtained by the claimant and any costs incurred in connection with the claim.
(3) If this section applies to an insurer, the claimant is entitled to recover from the insurer as a debt the amount of the financial benefit so obtained by the insurer and any costs incurred by the claimant in connection with the claim.”
Concerns regarding the claimant’s contentions 
22.	I have considered the available evidence in detail and agree with the insurer that the current material raises serious concerns about the veracity of the claimant’s contentions and the possibility of falsified documents. The current material raises the question as to whether the claimant has provided false and misleading information in breach of his obligations under s 6.3 of the MAI Act which in turn raises the question as to whether any part of the claim is fraudulent. Information which raises these concerns includes the following:
(a)	there is evidence indicating the claimant operated (and may continue to operate post-accident) a sole trader business, which he has failed to disclose to the insurer. The evidence includes an ABN registered to the claimant (which was at one time registered for GST) and an Australian Taxation Office (ATO) activity account 003 regarding monies owed to the ATO likely in connection with the claimant’s business (possibly GST not remitted by the claimant);
(b)	there is evidence the claimant likely provided false and misleading information to the insurer regarding a number of things, including whether he had a tax file number or bank account. The claimant advised the insurer he did not have a tax file number or bank account but subsequently provided a PAYG payment summary recording a tax file number (albeit redacted) and screen shots of his ATO activity account. There is also evidence that the claimant does in fact have a bank account. An inference is available that the claimant denied having a tax file number or bank account so as to prevent the insurer from obtaining relevant records which might disclose the claimant’s true earnings circumstances before and/or after the accident;
(c)	the claimant provided payslips purportedly issued by his employer for the period 3 November 2020 to 14 November 2021. However, the employer provided a statement to the insurer stating payslips were not issued to the claimant as he was paid cash;
(d)	the payslips are identical regarding the amount paid each fortnight and the year to date (YTD) is not updated/incorrectly recorded. Not only is the YTD figure in each payslip inconsistent with the contention of ongoing earnings the contention in the payslip there was no change to earnings week to week is inconsistent with the employer’s statement that hours (and therefore wages) varied each week;
(e)	the payslips commence from 3 November 2020 which is inconsistent with the statement of the employer that the claimant commenced work in or about April 2021;
(f)	the claimant also provided a Pay as You Go tax summary (PAYG summary) for the period 30 June 2020 to 30 June 2021 allegedly issued by the same employer on 5 July 2021. This is also inconsistent with the employer’s statement that other than timesheets (now lost) the employer did not keep employment records due to the cash arrangement with the claimant;
(g)	the payslips were purportedly issued by a business holding ABN 65 401 013 653 which is owned by Ihab El Zaghir as a sole trader who registered the business name “Semsom” in January 2020. However, the PAYG summary is issued by a registered corporation, Semsom Pty Limited with ABN 36 654 953 885 (that is, a different ABN to that shown on the payslips). This suggests either the payslips or the PAYG summary, or both, may be false documents;
(h)	records held by the Australian Securities and Investments Commission (ASIC) show that neither the company nor the ABN recorded as the employer on the PAYG summary existed prior to 31 October 2021. Accordingly, it is not possible that this document was prepared on or before 5 July 2021 given the company did not exist at that time and the ABN had not yet been issued. Accordingly, the ABN could not have been known as of 5 July 2021 (as it did not exist) when the document is said to have been signed by the employer;
(i)	the signatures on the PAYG summary and employment agreement said to be that of Mr El Zaghir do not match Mr El Zaghir’s signature on the statement he provided to the insurer (there also appears to be a discrepancy between the signature on the PAYG summary and the signature on the employment agreement. Whilst they are similar to each other they also appear to be different from each other;
(j)	the employer expressed concerns the claimant may have forged employment records for the purpose of his claim, and
(k)	the employer stated the claimant returned to work after the motor accident, which is inconsistent with the claimant’s contention, he has not returned to any employment post-accident. 
23.	The insurer’s submissions also identify anomalies and inconsistencies in the evidence with which I agree. 
24.	Having regard to the above, I have reached the conclusion that the veracity of the claimant’s contentions is in issue, as is the veracity of the documentary evidence he has provided such as the payslips, PAYG summary and employment agreement. Most notably, the PAYG summary could not possibly have been prepared and issued on 
5 July 2021 as contended in the document given neither the issuing company nor the ABN existed at that time (in addition to the issue that it was allegedly prepared by a different entity to that which purportedly had been paying wages to the claimant over the same period). The available inference is that this document was prepared on a later date, after 31 October 2021 (when the company and ABN came into existence) and after the motor accident for the purpose of making the claim.
25.	Given the above, I consider there is a reasonable basis for a belief that documents provided by the claimant may be false such that the possibility of fraud should be investigated by the insurer.
Procedural directions
26.	On 1 June 2023 I issued directions for the claimant to provide the following documents, which may have assisted in clarifying the evidence currently available:
(a)	a copy of the front and back side of the claimant’s drivers’ licence;
(b)	a copy of his bridging visa;
(c)	the claimant’s tax file number;
(d)	Business Activity Statements (BAS) for ABN 49 874 160 324 for the period 1 October 2020 to date;
(e)	an unredacted copy of the PAYG payment summary for the period 
30 June 2020 to 30 June 2021 issued by Ihab El Zaghir which shows all details including the tax file number and tax withhold amount which are redacted in the current version;
(f)	the PAYG payment summary/summaries issued by Ihab El Zaghir and/or Semsom and any other employer for the financial year 1 July 2021 to 
30 June 2022 or any part of that period;
(g)	a complete copy of the claimant’s ATO activity statement 003 for the period 30 June 2020 to date showing all transactions in this period;
(h)	a complete copy of the claimant’s tax returns, including supplementary sections, for the financial years ending 30 June 2020, 30 June 2021 and 
30 June 2022;
(i)	the claimant’s ATO notices of assessment for the financial years ending 30 June 2020, 30 June 2021 and 30 June 2022;
(j)	all income statements available in the claimant’s MyGov account for the period 1 July 2020 to date;
(k)	complete bank statements for the for the period 1 January 2021 to date for bank account BSB 062 948, Account no. 14150397, and
(l)	complete bank statements for all other bank accounts held by the claimant or held on behalf of the claimant or in the name of any business owned or operated by the claimant for the period 1 January 2021 to date.
27.	The claimant was directed to provide the above by 9 June 2023. The claimant failed to comply with these directions.
28.	On 27 June 2023 time for compliance by the claimant with the directions made on 
1 June 2023 was extended to 6 July 2023.
29.	The claimant has continued to fail to comply with the directions. To date, none of the further documents required by the directions have been provided. No explanation has been given by the claimant for their failure to comply with the directions.

Consideration  
30.	The issue for determination is whether the claimant provided false declarations regarding whether he has undertaken any employment post-accident. The current evidence clearly gives rise to a probability that contrary to his declaration that he has not undertaken any post-accident employment the claimant has returned to employment and/or self-employed post-accident. 
31.	Given the claimant failed to provide the further documents required by the directions I am unable to further consider whether the probability contended by the claimant, that he has not returned to employment, is more probable than the probability that he has returned to employment. 
32.	The claimant’s credit is in issue. A question arises as to whether the claimant has also provided false documents to the insurer.
Documents required by the further directions (but not provided) might have assisted in determining the veracity of the claimant’s contentions and clarifying anomalies in the evidence currently available. 
34.	The directions for the claimant to provide further documents were not onerous. The documents requested in the directions ought to be readily available to the claimant, including through his MyGov account which he clearly has. 
35.	Pursuant to ss 42 and 49 of the Personal Injury Commission Act 2020 (PIC Act) compliance with the directions is mandatory.
36.	Following an extension of time, the claimant was required to comply with the directions of 1 June 2023 by 6 July 2023. The claimant again failed to comply. The claimant has not made any request for a further extension of time and has not offered any explanation for the non-compliance.
37.	Pursuant to the guiding principle in s 42 of the PIC Act the claimant is under a duty to cooperate with the Commission, including by complying with directions. Accordingly, compliance with the directions is mandatory. The claimant is in breach of the directions. The claimant is in turn in breach of his duty under s 42 of the PIC Act. 
38.	Pursuant to s 54 of the PIC Act the Commission may at any stage dismiss proceedings:
(a)	if it is satisfied that the proceedings have been abandoned, or
(b)	if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)	for any other ground of dismissal specified in the Commission rules.
39.	The grounds specified under Rule 77 of the Personal Injury Commission Rules 2021 (the PIC Rules) for the purpose of s 54(c) of the PIC Act include:
(a)	the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President; or
(b)	the applicant has failed to prosecute the proceedings with due despatch.
40.	Pursuant to PIC Rule 114(1)(d) section 54 applies to merit review proceedings. 
41.	Pursuant to PIC Rule 114(2) “a function given to the Commission in section 42 … of the PIC Act is to be read as being given to the merit reviewer conducting the merit review proceedings”.
42.	Pursuant to PIC Rule 114(3) “a function given to the Commission in section … 54 of the PIC Act is to be read as being given to the President”.
43.	Pursuant to PIC Rule 9:
“A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.” 
44.	Pursuant to Rule 5(2)(d) applicable proceedings for the purpose of PIC Rule 9 include merit review proceedings.
45.	Pursuant to PIC Rule 5 “merit review proceedings” are “proceedings before a merit reviewer under enabling legislation”. Accordingly, these proceedings are merit review proceedings for the purpose of s 54 of the MAI Act and PIC Rule 114.
46.	Accordingly:
(a)	pursuant to PIC Rule 114 as Merit Reviewer I have power to issue directions to the parties and for compliance with the directions by the parties to be compulsory under s 42 of the PIC Act, and
(b)	pursuant to PIC Rules 114 and 9 I have power to strike out the proceedings or to take any step in the proceedings that could be made by the President. This includes the power to dismiss the proceedings under s 54(c) of the PIC Act and PIC Rule 77.
47.	The claimant has failed to comply with the directions issued on 1 June 2023 and extended on 27 June 2023, without reasonable excuse. As a result, the claimant has failed to prosecute the proceedings with due despatch. 
48.	In the circumstances I have determined that pursuant to s 54(c) of the PIC Act and PIC Rule 77(b)(ii) and/or (iii) the proceedings should be dismissed.
CONCLUSION
49.	 For the reasons set out above the proceedings are dismissed on the basis: 
(a)	the claimant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President (PIC Rule 77(b)(ii)), and/or
(b)	the claimant has failed to prosecute the proceedings with due despatch (PIC Rule 77(b)(iii)).
LEGISLATION AND GUIDELINES 
50.	In making this decision, I have considered the following:
•	The Application, Reply and supporting documentation;
•	MAI Act;
•	Motor Accident Guidelines;
•	Motor Accident Injuries Regulation 2017;
•	the PIC Act, and
•	the PIC Rules.