CERTIFICATE OF DETERMINATION OF MERIT REVIEWER	
	
Citation:	O'Neill v QBE Insurance (Australia) Limited [2024] NSWPICMR 6	
		
ClaimanT:	Trudie O’Neill	
		
Insurer:	QBE Insurance (Australia) Limited	
		
Merit Reviewer:	Elizabeth Medland	
		
DATE OF DECISION:	15 March 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about the amount of weekly payments of statutory benefits that are payable under division 3.3; dispute as to the calculation of the claimant’s pre-accident weekly earnings (PAWE); claimant a casual aged care worker employed for more than 12 months with the same employer prior to the motor accident; insurer averaged earnings over the 12 month period immediately prior to the accident pursuant to schedule 1 clause 4(1); claimant requested a review on basis that she had requested (before the motor accident) an increase of shifts for the roster period the motor accident occurred; by inference the claimant submits that schedule 1 clause 4(3) applies; Held – schedule 1 clause 4(1) applies; the nature of casual work fluctuates and not established on the evidence that earnings would be more on a regular basis; insurer had averaged the amounts “earned” rather than “received”; found that the calculation should be on the basis of the amounts “received” and not “earned” in accordance with the wording of schedule 1 clause 4(1); consideration of statutory interpretation principles pursuant to the Interpretation Act 1987 and Project Blue Sky v ABA. 

Determinations made: 	CERTIFICATE
The reviewable decision 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.	The reviewable decision is set aside and a decision in substitution for the reviewable decision is made as follows: 
(a)	 the claimant’s pre-accident weekly earnings is $533.76.

STATEMENT OF REASONS
BACKGROUND
1.	The determination relates to a merit review dispute between the parties, under Schedule 2, 
cl 1(a) of the MAI Act which deals with the amount of statutory benefits payable under Division 3.3 of the MAI Act. 
2.	Specifically, the dispute centres on the calculation of the claimant’s pre-accident weekly earnings (PAWE). 
3.	There is no dispute between the parties that the claimant is an “earner” for the purposes of the MAI Act. 
4.	There is also no dispute that the claimant is entitled to payments of weekly statutory benefits. 
5.	The only matter in dispute is the calculation of the claimant’s PAWE pursuant to Schedule 1 of the MAI Act.
6.	Ms Trudie O’Neill (the claimant) is a 22-year-old female who alleges injury as a result of a motor accident occurring on 9 October 2023. 
7.	She subsequently lodged an Application for Personal Injury Benefits (the claim form) with QBE Insurance (Australia) Limited (the insurer) on or around 17 October 2023. The insurer admitted liability for payment of statutory benefits to the claimant. 
8.	By way of notice dated 10 February 2022, the insurer advised the claimant of their determination as to the claimant’s PAWE. The PAWE was calculated to be $556.65. 
9.	The claimant took issue with this calculation and an internal review application was made. 
10.	An internal review decision dated 16 November 2023 affirmed the original decision that calculated the PAWE at $556.65. 
11.	The claimant disputes this calculation and submits that the calculation of PAWE. In doing so, she submits that she was rostered to work increased working hours over the next two fortnight periods. In addition, it is submitted that the increased working hours would have substantially increased her earnings and therefore her PAWE should be adjusted to reflect this. As such, she has lodged an application with the Personal Injury Commission (Commission) for a determination of a dispute. 
12.	I have held one preliminary conference between the parties on 24 January 2023. The claimant is unrepresented. 
13.	Both the claimant and the insurer’s representative were provided with the opportunity to make oral submissions further to the written material before me. Both parties agreed that it was appropriate for me to assess the matter on the papers. The claimant explained that she was suffering financial hardship as a result of the weekly statutory benefits not meeting her financial obligations. 
DOCUMENTS CONSIDERED
14.	I have considered the documents provided in the application and reply and all other documents provided by the parties. 
LEGISLATIVE FRAMEWORK 
15.	Division 3.3 of the MAI Act deals with an injured person’s entitlement to weekly payments of statutory benefits. 
16.	Sections 3.6 and 3.7 sets out an entitlement to weekly payments calculated with reference to the injured person’s “pre-accident weekly earnings”.
17.	Schedule 1 of the MAI Act sets out the definitions relating to earnings for purposes of weekly payments of statutory benefits under Division 3.3. 
18.	Clause 4 of Schedule 1 of the MAI Act provides as follows:
“4 Meaning of ‘pre-accident weekly earnings’—general
(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) 	In the following cases, pre-accident weekly earnings, in relation to an earner who is injured as a result of a motor accident, means—
(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,
(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,
(b) 	if subclause (3) applies—the weekly average of the gross earnings the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred,
(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.
(2A) 	The pre-accident period, in relation to a motor accident, is the period of 2 years immediately preceding the motor accident.
(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.
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.
(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.”
19.	Schedule 2, cl (1)(a) provides that a dispute as to the amount of statutory benefits that is payable under Division 3.3 (weekly payments of statutory benefits to injured persons) is a merit review matter. 
20.	Section 7.12 of the MAI Act provides that a merit review matter may be referred to the President of the Commission for determination. 
SUMMARY OF EVIDENCE
21.	Prior to the accident, the claimant was employed as an aged care worker as assistant in nursing/care service employee with Fairlea Aged Care Rosehill.  
22.	Within the claim form the claimant lists her fortnightly earnings from her casual employment as $989.31. 
23.	In an email dated 27 October 2023 the claimant advised the insurer that during the period 
26 December 2022 and 21 January 2023 she did not work due to university commitments. She also explains that she was on holiday between 20 June 2023 and 19 August 2023 and began working again on 27 August 2023. The claimant states she hoped this would “clear up the missing gaps”. 
24.	The insurer sent an email dated 10 January 2024 to the claimant referring to the subject application to the Commission. It stated that even though the claimant had explained her absences from work, the insurer still required copies of payslips even if they show nil earnings.  In a reply email the claimant explains that she is a casual and therefore no payslips are provided for periods that are not worked. This assertion is supported by an email (undated) from a representative (Kitty Ng, care manager) of the claimant’s employer.
25.	In their letter setting out the calculation of PAWE, the insurer noted that the payslips provided by the claimant from Fairlea Aged Care demonstrated earnings of $28,946.20 over the 52 weeks prior to the accident. Which translates to $556.65 per week. 
26.	The insurer has included a further calculation sheet in the material attached to their reply. This calculates the claimant’s earnings over the 12 months prior to the accident as totalling $28,544.14 translating to a PAWE of $548.93. 
27.	Before me are copies of payslips from the claimant’s employer that cover the relevant 
12-month period. Also included in the material is a copy of the claimant’s roster from 
2 October 2023 to 15 October 2023.  It details the claimant scheduled to work shifts on 5, 6, 7, 8, 12, 13, 14 and 15 October 2023. 
28.	A further roster for the period 16 October 2023, has the claimant scheduled to work shifts on 19, 20, 21, 22, 26, 27, 28 and 29 October 2023. 
29.	The claimant has also provided a screenshot of a text message exchange between herself and “Kitty (Fairlea)”. I have assumed this is the same “Kitty” referred to above who has provided an email regarding payslips. The claimant states in one text message: “For the next roster I’ll be available for Thursdays-Sundays (afternoon shift) is it possible if I could be put on for more days?” Kitty responds by saying: “Nice, if the vacant shift match your availability, of course.”  It is noted that the rosters mentioned above appear to reflect the claimant’s request. 
SUBMISSIONS 
The claimant’s case
30.	Within the claimant’s internal review form lodged with the insurer the claimant states as follows:
“As a casual and student my pay often changes, on the week of the accident I was scheduled to start working 8 days (50 hours) a fortnight, which would have made my pay drastically higher….” 
“My pay should be readjusted as I was rostered on for more days and longer hours which would have made my pay drastically higher.” 
“Pre accident, I lessened my work hours to study, however, I had recently increased my working hours as I was able to take on more work. I was rostered to start working 8 days (50 hours) in a fortnight. I have attached my roster. Before this accident I was healthy and fit to work, I would have been able to fulfill [sic] these working days, however, due to this accident that was not caused by me, I as left injured, in pain, and unable to work.” 
31.	In a letter attached to the application the claimant takes issue with the internal review determination. She explains that the decision does not adequately address the challenges she is facing as a result of the accident.
32.	The claimant asserts that in the same fortnight as the accident she had the opportunity to work additional shifts, and the subsequent weeks were anticipated to bring even more opportunities due to short staffing and colleagues on holiday. She states that “requesting an increase in my working hours during my university break was aimed at improving my financial situation and would have significantly boosted my income.” 
33.	The claimant accepts the average yearly income calculation in the decision-making process, however, submits it did not take into account several factors. This includes a prolonged holiday and the anticipated increase in earnings. 
34.	The claimant also refers to the unfortunate reality that her financial obligations are increasing, including an increase in rent. It is also noted that the injuries caused by the accident mean she is limited in exploring alternative employment opportunities. She therefore states “…I kindly request a reconsideration of the fortnightly payments decision, with the goal of a substantial increase to better align with the current challenges I am facing.” 
Insurer’s submissions dated 17 January 2024
35.	The insurer submits that the claimant’s PAWE is to be calculated under Schedule 1, cl 4(1) of the MAI Act noting that the claimant has been employed by her current employer from at least 27 January 2022. 
36.	It is submitted that the evidence does not establish that any of the exceptions in sub-clause 2 of cl 4 apply to the claimant’s circumstances nor that sub-clause 3 of cl 4 applies to the claimant’s circumstances. 
37.	The insurer submits that the claimant’s anticipated increase in earnings is a scenario that is not envisioned by Schedule 1, cl 4(3) of the MAI Act. 
38.	It is also noted by the insurer that the claimant had previously been rostered and worked additional shifts (such as eight shifts over a fortnight), with the most recent example being 
24 July to 6 August 2023, around two months prior to the accident. 
39.	The insurer acknowledges the claimant’s difficult financial position, however, observes that there is no legislative provision that allows an adjustment to PAWE based on the claimant’s current cost of living expenses. 
40.	In addressing the claimant’s submission regarding adjustments due to periods where she was not working, such as that due to a prolonged holiday, the insurer noes that Schedule 1, cl 4(1) of the MAI Act references the 12 months immediately before the accident and insurer is precluded from considering the claimant’s alleged higher earnings in previous years. 
41.	The insurer also relies on the case of Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481 (Shahmiri), wherein Harrison AsJ found that Schedule 1, cl 4(1) does not permit any adjustment to the 12-month period preceding the motor accident to accommodate for periods where the claimant was not earning. 
42.	The submissions assert that the original PAWE calculation by the insurer was incorrect due to it being calculated over the period of 3 October 2022 to 15 October 2023, being a period of 54 weeks rather than the required 52 weeks. The insurer notes the relevant period should instead by 9 October 2022 to 8 October 2023 inclusive. The insurer explains the conceded errors as follows: 
“The Claimant’s payslip for the period 3 October to 16 October 2022 shows only two shifts occurring before the relevant 12-month pre-accident period commencing on 9 October 2022 (R5- page17). Removing the two shifts, the Insurer calculates the Claimant’s gross income for the period of the payslip within the relevant 12-month pre-accident period as $1,003.39 (R7). 
The Claimant’s payslip for the period 2 October to 15 October 2023 confirms that the Claimant earned no income after 8 October 2023, the last day of the relevant 12-month pre-accident period (R5- page 40). Therefore, the Claimant’s gross income for that period of $1,199.84 was earned during the relevant 12-month pre-accident period. 
The Insurer further concedes that the Insurer, in its PAWE calculation of 30 October 2023, incorrectly applied the Claimant’s gross income from the payslip for the period 9 January 2023 to 22 January 2023. In the Insurer’s calculation, the above payslip’s gross income is listed as $923.33. However, the payslip in fact confirms a gross income of 932.33 (R5-page 23), a difference of $9.00.” 
43.	The insurer also refers to the claimant’s email of 27 October 2023 that sets out periods where she was not working. The insurer notes that the payslips suggest the claimant was in fact working for some of the time the email specifies she was off work. 
44.	The insurer concludes that based on the revised calculation based off the payslips provided the claimant “earned” $28,544.14 over the relevant 12-month pre-accident equating to a PAWE of $548.93. 
FINDINGS AND REASONS
Which clause of Schedule 1(4) of the MAI Act is to be applied
45.	In calculating PAWE, the insurer has utilised Schedule 1, cl (4)(1). It says none of the exceptions set out in cl 4(2) apply. If further submits that cl 4(3) does not apply. 
46.	By inference, the claimant, effectively submits that Schedule 1, cl 4(3) applies to her situation. That is, due to her request for an increase in shifts meant that she would become entitled to earn more on a weekly basis that she was earning before such change. 
47.	I have carefully considered the material before, in particular, the text message exchange between the claimant and “Kitty” from her employer who at the relevant time was in charge of the claimant’s roster.  There is nothing within that text message exchange that suggests that the requested increase in shifts is something that could be anticipated to continue on a regular basis. In this regard, the text message from the claimant simply refers to the “next roster”. 
48.	It is within the nature of casual work that availabilities and therefore earnings, fluctuate. This is of course, accounts for availability around study and other commitments, which appears to be the case for the claimant during the relevant periods. 
49.	I accept the insurer’s submission that the claimant’s payslips demonstrate that at times the claimant worked increased hours, similar to the requested increase in hours for the roster that encompasses the date of the accident. 
50.	I therefore do not accept that Schedule 1, cl (4)(3) applies to the circumstances of this matter. Specifically, whilst there was a request for an increase in hours, I do not consider the evidence sufficiently establishes that she would have regularly earned such increased amounts. The evidence only goes so far to establish that her earnings would increase for that particular roster.
51.	I therefore find that the relevant provision applicable to the calculation of the claimant’s PAWE is Schedule 1, cl 4(1) of the MAI Act. That is “…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…” 
Which amounts are to be included in the PAWE calculation
52.	In making the PAWE calculation the insurer refers to amounts “earned” by the claimant, and has attempted to ascertain what amounts were “earned” by the claimant up until the date of the accident. 
53.	However, I consider this approach to be incorrect. 
54.	As I have found above, noting Schedule 1, cl 4(1) applies, the calculation of the claimant’s PAWE will reflect the weekly average gross earnings received by the claimant in the 
12 months immediately before the motor vehicle accident. 
55.	The motor accident occurred on 9 October 2023. The relevant 12-month period is therefore 
9 October 2022 to 8 October 2023 inclusive.
56.	As noted above, cl 4(1) of Schedule 1 of the MAI Act applies to the calculation of the claimant’s PAWE. Such sub-clause provides that the PAWE includes the gross earnings “received by the earner” for the 12 months prior to the accident. 
57.	In terms of statutory interpretation, generally the meaning of a statute is the grammatical meaning, however, that is not always the case. 
58.	In the leadings case for statutory interpretation, Project Blue Sky v ABA [1998] 194 CLR 355 (Project Blue Sky) at [780], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ found: 
“The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning…But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” 
59.	Section 37 of the Interpretation Act 1987, requires that when interpreting a certain statutory provision, a construction that would promote the purpose of the object underlying the Act is to be preferred to a construction that would not promote that purpose or object. 
60.	After carefully considering the wording of Schedule 1, cl 4(1), I find that the words should be given their grammatical meaning. In this regard, interpretation of “earnings received” by the injured person, as opposed to all amounts “earned” and distributed to others, does not, in my view, fall foul of the object contained within s 1.3(2)(b) of the MAI Act. Such section provides an object to be: “to provide early and ongoing financial support for persons injured in motor accidents.” 
61.	This interpretation is in line with the purpose of providing payments of weekly statutory benefits to an injured person that are generally commensurate with the amount of money received by them from earnings prior to the accident. It would sometimes be a very difficult task (and likely at times almost impossible) to ascertain what payments, or what portion of payments actually received during the relevant period is payment for work performed outside of the relevant period. 
62.	I have carefully considered the payslips provided. I have found that the following amounts were received by the claimant during the relevant period: 
Payslip period	Gross earnings received	
3/10/22 – 16/10/22	$1,414.45	
17/10/22 – 30/10/22	$1,688.19	
31/10/22 – 13/11/22	$1,405.96	
14/11/22 – 27/11/22	$1,231.62	
28/11/22 – 11/12/22	$721.57	
12/12/22 – 25/12/22	$415.56	
9/1/23 – 22/1/23	$932.33	
23/1/23 – 5/2/23	$879.10	
6/2/23 – 19/2/23	$886.95	
20/2/23 – 5/3/23	$1,347.86	
6/3/23 – 19/3/23	$1,160.54	
20/3/23 – 2/4/23	$1,343.37	
3/4/23 – 16/4/23	$1,342.02	
17/4/23 – 30/4/23	$1,405.60	
1/5/23 – 14/5/23	$1,343.37	
15/5/23 – 28/5/23	$1,405.60	
29/5/23 – 11/6/23	$1,405.60	
12/6/23 – 25/6/23	$671.70	
24/7/23 – 6/8/23	$2,075.79	
7/8/23 – 20/8/23	$1,446.25	
21/8/23 – 3/9/23	$1,077.31	
4/9/23 – 17/9/23	$1,077.31	
18/9/23 – 1/10/23	$1,077.31	
 
63.	The above earnings received in the 12 months immediately before the motor accident total an amount of $27,755.36. Dividing this by 52 equates to a PAWE of $533.76. 
64.	In making this calculation, I accept the submission of the insurer that the legislation does not permit (as confirmed in the case of Shahmiri) an adjustment of the amounts to account for any period not worked in the 12-month period prior to the occurrence of the motor accident.  
65.	Accordingly, I set aside the reviewable decision and remit the matter for reconsideration by the insurer. In doing so, I direct that the insurer calculate the PAWE on the basis of amounts received by the claimant in the period 30 October 2021 to 30 October 2022 (and not any amounts that were received outside of this period, whether or not it reflects work carried out during the period). 
66.	I note the claimant’s evidence that she is currently experiencing financial hardship and has difficulty meeting her financial obligations.  As real as those issues are, they are not issues that can be taken into account when determining PAWE.  There is no legislative provision that allows discretion in this regard. 
CONCLUSION
67.	On the basis of the above:
(a)	The reviewable decision is set aside. The following decision is made in substation for the reviewable decision to the insurer for re-determination pursuant to the following direction:
(i)	the claimant’s PAWE is $533.76 
LEGISLATION AND GUIDELINES
68.	In making this decision, I have considered the following:
(a)	the Application, Reply and supporting documentation;
(b)	MAI Act;
(c)	Motor Accident Guidelines, and
(d)	Motor Accident Injuries Regulation 2017.