CERTIFICATE OF DETERMINATION OF MERIT REVIEWER	
	
Citation:	Abboud v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 36	
		
ClaimanT:		
		
Insurer:	NRMA	
		
Merit Reviewer:	Kriesen Seeneevassen	
		
DATE OF DECISION:	6 June 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS- Dispute about statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the 2017 Act); sections 3.6 and 3.7 of the 2017 Act; whether there was a partial or total loss of earnings pursuant to sections 3.6 and 3.7 of the 2017 Act; schedule 1 clause 3 of the 2017 Act; whether there was a loss of earnings pursuant to schedule 1 clause 3 of the 2017 Act; Held– the reviewable decision is affirmed. 

Determinations made: 	The reviewable decision is about  the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act,  and is therefore a merit review matter under Schedule 2(1)(a) of the Motor Accident Injuries Act 2017.
1.	The reviewable decision is
(a) affirmed.
2.	The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $ NIL.  

Certificate
Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

BACKGROUND
1.	There is a dispute between Ms Samar Abboud (the claimant) and the NRMA (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 injured in a motor vehicle accident (MVA) on 24 July 2020. She lodged an application for personal injury benefits on 27 July 2020.
3.	On 2 December 2021, the insurer found that the claimant was not an earner. Upon conducting an internal review, the insurer reversed that decision on 13 December 2021.
4.	On 16 December 2021 the insurer advised the claimant that even thought she was an earner; she was not entitled to statutory benefits because she had not incurred a partial or total loss of earnings because of the injuries sustained in the MVA. The insurer conducted an internal review of that decision, and on 20 December 2021 affirmed that decision.
5.	The claimant now seeks a further review of the insurer’s decision that she was had not suffered a total or partial loss of earnings because of the injuries sustained in the MVA.
Submissions and other documents
6.	I issued direction to the parties on 17 March 2022 requesting them to lodge all the relevant material that they would like me to consider in reviewing this matter.
7.	I have reviewed all the documents that the parties have made available.
The claimant
8.	The claimant has not lodged any submissions.
9.	In her Personal Injury Commission (Commission) application the claimant states that the dispute is about whether there has been a loss of earnings as a result of the injuries sustained in the MVA.
10.	Her legal representative wrote a letter to the insurer dated 5 August 2021 stating that their client was offered employment in mid-July 2020 but was unable to work following the MVA.
11.	There is a letter from the Panania Medical Services dated 31 May 2021 stating that the claimant ceased her employment with them in March 2020 due to the COVID-19 pandemic. She was verbally offered to return to her previous duties a few months later.

The insurer
12.	The insurer submits that the claimant had not suffered a partial or total loss of earnings because:
a.	There is an initial needs and activities of daily living assessment report of the claimant from Benchmark rehabilitation dated 20 August 2020. It notes the claimant as saying that they are self-funded retirees living off their investments.
b.	Acting under the insurer’s instructions, Quantumcorp had investigated the circumstances surrounding this MVA. Their report dated 26 November 2021 states that they had interviewed the claimant employer who had told them that the claimant had resigned from her position in March 2020 due to COVID. She had subsequently declined a verbal offer to resume work in her previous position in May 2020 still due to COVID. The employer had since filled the vacant position. 
13.	Attached to the insurer’s submission is an email from the claimant to the insurer dated 2 December 2020 saying that the claimant did not decline the offer to resume her employment at the medical practice. She was merely waiting for COVID to ease.
The Law
14.	Under sections 3.6 and 3.7 of the MAI Act, an earner who is injured because of a motor vehicle accident and suffers a total or partial loss of earnings because of the injury is entitled to statutory benefits for the first and second entitlement periods.
15.	Schedule 1 clause 3 of the MAI Act, defines loss of earnings as follows:
Meaning of "loss of earnings"
(1)		"Loss of earnings" means a loss incurred or likely to be incurred in a person's income from personal exertion.	
(2)		A person's "income from personal exertion" is--	
	(a)	the amount that is the income of the person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, and	
	(b)	the proceeds of any business carried on by the person either alone or in partnership with any other person, and	
	(c)	any amount received as bounty or subsidy in carrying on a business	
(3)		A person's "income from personal exertion" does not include--	
	(a)	interest, unless the person's principal business consists of the lending of money, or unless the interest is received in respect of a debt due to the person for goods supplied or services rendered by the person in the course of the person's business, or	
	(b)	rents or dividends, or	
	(c)	any employer superannuation contributions, or	
	(d)	the monetary amount of any annual, sick or other leave entitlement.	
Reasons 
16.	It is undisputed that the claimant is an earner who was injured in the MVA.
17.	I find that the claimant had not suffered a partial or total loss of earnings because of her injury because:
a.	The investments that the claimant is living on do not constitute earnings by virtue of Schedule 1 clause (3) of the MAI Act because they are not in relation personal exertion.
b.	The claimant had not lost any earnings from her employment at Panania Medical Centre resulting from the MVA because she was not employed by them at the time of the MVA.
c.	The claimant was not likely to have incurred a loss of her earnings from Panania Medical Centre because the evidence produced is that there was no position for her to go back to. The position that she had vacated in March 2020, and that she declined to return to in May 2020, had been filled.
Other matters
18.	It may be possible that the claimant’s intention was to wait for COVID to ease before resuming her employment with Panania Medical Centre, however she did not have a position to go back to. According to the Quantumcorp report, the position that she had vacated in March 2020 had been filled when she declined to resume her role in May 2020.
19.	I am unable to find that the claimant had been offered employment in Mid-July 2020 but was unable to work following the MVA, as her legal representative contends in their letter dated 5 August 2021. No documents that have been made available to me to substantiate this contention.
Conclusion 
20.	The reviewable decision is: 
i)	affirmed.
21.	The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $ NIL.
Legislation and Guidelines
22.	In making this decision, I have considered the following:
•	The application, reply and supporting documentation, and
•	Motor Accident Injuries Act 2017 (NSW) (the Act).