CERTIFICATE OF DETERMINATION OF MERIT REVIEWER	
	
Citation:	Magar v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 22	
		
ClaimanT:	Ranjana Magar	
		
Insurer:	Insurance Australia Limited t/as NRMA Insurance	
		
Merit Reviewer:	Maurice Castagnet	
		
DATE OF DECISION:	6 April 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about the amount of weekly payments of statutory benefits payable under Division 3.3; where the claimant was an earner but not employed immediately before the accident; Schedule 1 clause 4(1) applied to calculate claimant’s pre-accident weekly earnings (PAWE); Held – the reviewable decision is set aside. 	
		
Determinations made: 	CERTIFICATE OF DETERMINATION
Issued under s 7.13(4) of the Motor Accident Injuries Act 2017
The reviewable decision concerns the amount of weekly payments of statutory benefits that is 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, cl (1)(a) of the MAI Act.
1.	The reviewable decision is set aside.
2.	The claimant’s pre-accident weekly earnings (PAWE) are determined to be $897.10.
3.	The insurer is to apply PAWE of $897.10 when determining the claimant’s entitlements under Division 3.3 of the MAI Act. 
4.	The effective date of this decision is 1 October 2022.	

STATEMENT OF REASONS
INTRODUCTION
1.	In this matter there is a dispute between the claimant, Ranjana Magar and the insurer concerning the amount of weekly payments of statutory benefits that is payable to the claimant under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
BACKGROUND
2.	The claimant is a 35-year-old woman who was injured in a motor accident on 
30 September 2022. 
3.	On 2 October 2022, the claimant made a claim to the insurer for statutory benefits. The claim included an application for weekly payments for loss of earnings. 
4.	On her claim form, the claimant stated that she was unemployed at the time of the accident.
5.	The claimant holds a bachelor’s degree in business information systems from Kathmandu University in Nepal and a master’s degree in accounting from Charles Sturt University. It is evident from her statement to the Personal Injury Commission (Commission) that the claimant has been consistently employed in a variety of roles from 2010 to July 2022. After completing her last employment contract on 
29 July 2022, the claimant went on vacation to Europe. She stated that upon her return on 6 September 2022, she commenced her search for new employment. 
6.	On 18 October 2022, the insurer notified the claimant that she was not entitled to receive weekly payments of statutory benefits for loss of earnings on the basis that the claimant was not an “earner” for the purposes of the MAI Act. 
7.	On 31 October 2022, the insurer retracted the decision, citing an “administrative error”. On this occasion, the claimant was notified that she was an ‘earner’ within the meaning of cl 2 of Schedule 1 of the MAI Act. However, the claimant was also notified that she was not entitled to weekly payments of statutory benefits because she was not employed on the day immediately before the motor accident and as she did not work post-accident, there was no “subsequent loss of earnings”. 
8.	On 24 June 2022, the claimant sought an internal review of the decision. On 
16 November 2022, the insurer issued a review decision, affirming its original decision.
9.	On 14 March 2023, the claimant made an application to the Commission seeking a merit review of the insurer’s decision. On 29 March 2023, the insurer lodged a reply.
10.	The application is now before me for determination.
DOCUMENTS CONSIDERED
11.	In making my decision, I considered the documents and submissions provided to the Commission by the claimant in her application and by the insurer in its reply. I considered additional submissions provided by the claimant to the Commission at my request.
12.	I am satisfied that I have enough information to proceed with a determination of the dispute, on the papers.
LEGISLATION
13.	In making my decision, I considered the following:
•	the MAI Act;
•	the Motor Accident Guidelines 2017 (Version 9.1) (the Guidelines), and
•	the Motor Accident Injuries Regulation 2017 (the Regulation).
THE INSURER’S POSITION
14.	The insurer’s submissions may be summarised as follows:
(a)	The insurer accepts that the claimant is an “earner”. However, the claimant had resigned from her employment in July 2022 and was not employed at the time of the motor accident. On that basis, the claimant is not entitled to weekly payments of statutory benefits.
(b)	To be entitled to weekly payments of statutory benefits under s 3.6 of the MAI Act, the claimant needs to have suffered a total or partial loss of earnings. Clause 3(1) of Schedule 1 of the MAI Act states that a loss of earnings means a loss that is incurred, or likely to be incurred in a person’s income from personal exertion.
(c)	The claimant indicated that she was not employed between 29 July 2022 to the date of the motor accident. The claimant alleges she was job seeking at the time of the motor accident. The claimant has not served any evidence that she had any offers of employment prior to the motor accident. The claimant therefore did not suffer from any loss of earnings as a result of the motor accident and not entitled to receive weekly payments of statutory benefits.
THE CLAIMANT’S POSITION
15.	The claimant’s submissions may be summarised as follows:
(a)	The claimant was employed for a period of 12 months extending from about July 2021 until 29 July 2022.
(b)	Whilst the claimant was not employed on the day immediately preceding the accident, she qualifies as an “earner” under sub-cl 2(a)(ii) because she worked during a period of at least 13 weeks during the year immediately preceding the motor accident. Indeed, the claimant worked approximately 43 weeks in the year immediately preceding the motor accident and had certainly not retired permanently from all employment.
(c)	The claimant as an “earner” has clearly suffered a loss due to her being certified totally unfit for work. The claimant has experienced a loss of earnings on the basis that she would have found employment but for the accident and is now being deprived of income from personal exertion. 
(d)	The claimant submits that the methods referenced in either cl 4(1) or sub-cl 4(2) (a1) of Schedule 1 of the MAI Act may be applied to determine her pre-accident weekly earnings (PAWE). 
(e)	The claimant's earnings for the periods verified in the Australian Taxation Office income statements may be summarised as follows:
(i)	over a period of 56 weeks from 1 July 2021 to 29 July 2022, the claimant received gross earnings of $71,974.80. This averages to $1,285.26 gross per week;
(ii)	the claimant worked for a period of 43 weeks in the immediate 12-month period which preceded the motor accident;
(iii)	applying $1,285.26 over a period of 43 weeks results in gross earnings of $55,266.36, and
(iv)	by averaging this amount over a period of 52 weeks results in a figure of $1,062.81 gross per week.
(f)	The claimant submits her PAWE should be $1,062.81.
RELEVANT LEGISLATION
16.	Division 3.3 of the MAI Act deals with weekly payments of statutory benefits to injured persons. Sections 3.6 and 3.7 deal with the entitlement to weekly payments of an “earner” such as the claimant, during the period from the date of the accident up to 78 weeks following the accident. The first period is the first 13 weeks after the accident. The second period is from weeks 14 to 78. These sections relevantly provide: 
“3.6 Weekly payments during first entitlement period (first 13 weeks after motor accident)
(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the first entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of 95% of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) for the first entitlement period.
… 
3.7 Weekly payments during second entitlement period (weeks 14–78 after motor accident)
(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the second entitlement period.
Note — Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2) A weekly payment of statutory benefits under this section is to be at the rate of —
(a) in the case of total loss of earning capacity—80%, or
(b) in the case of partial loss of earning capacity—85%,
of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) after the first entitlement period.
…”
[Emphasis added.]
17.	PAWE is defined in cl 4(1) of Schedule 1 of the MAI Act, subject to the qualifications in sub-cls (2), (2A), (3) and (4). 
18.	Clause 4 of Schedule 1 provides:
“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 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,
(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.
…
(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.	Although it is common ground between the parties that the claimant is an “earner” for the purpose of receiving weekly payments under ss 3.6 and 3.7 of the MAI Act, it is appropriate, for reasons that will later become apparent, to set out its definition in the MAI Act, in full.
20.	Clause 2 of Schedule 1 provides:
“2 Meaning of ‘earner’
A person who is injured as a result of a motor accident is an earner if the person is at least 15 years of age and who:
(a) was employed or self-employed (whether or not full-time);
(i) at any time during the 8 weeks immediately preceding the motor accident, or
(ii) during a period of periods equal to at least 13 weeks during the year immediately preceding the motor accident, or
(ii) during a period or periods equal to at least 26 weeks during the 2 years preceding the motor accident,
and, at the date of the accident, had not retired permanently from all employment, or
(b) before the motor accident, had entered into an arrangement (whether or not an enforceable contract);
(i) with an employer or other person to undertake employment, or
(ii) to commence business as a self-employed person, at a particular time and place, or
(c) was receiving a weekly payment or other payment in respect of loss of earnings under this Act or the Workers Compensation Act 1987.”
21.	“Loss of earnings” is defined in cl 3 of Schedule 1 of the MAI Act in the following terms:
“3   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.”

DISCUSSION
22.	The insurer accepts that the claimant is an “earner” for the purpose of any entitlements to weekly payments for loss of earnings under ss 3.6 and 3.7 of the MAI Act.
23.	However, the insurer argues that since the claimant was unemployed at the time of the motor accident and had not secured an offer of employment at the time of the accident, the claimant is not entitled to receive weekly payments for loss of earnings under ss 3.6 and 3.7. 
24.	I do not accept that argument for the following reasons.
25.	As conceded by the insurer, the claimant has satisfied the requirements of cl 2 of Schedule 1 to attain the status of an “earner”. Once the claimant has achieved that status, she is eligible to receive weekly payments of statutory benefits under ss 3.6 and 3.7 of the MAI Act for loss of earnings.
26.	Sub-clause 3 (1) of Schedule 1 of the MAI Act defines “loss of earnings” as a loss incurred or likely to be incurred in a person’s income from personal exertion. 
Sub-clause 3(2) provides that the person’s income from personal exertion includes earnings, salaries and wages received in the capacity of employee.
27.	I accept the claimant’s evidence that following the conclusion of her employment contract in July 2022, she took a holiday prior to seeking further employment. As the claimant points out, she had not retired from permanent employment. I am satisfied that given her employment history, but for the accident, she would have found employment. The claimant’s injuries have therefore caused her to suffer a loss of earnings.  
28.	According to ss 3.6 and 3.7 of the MAI Act, the amount of weekly payments that the claimant might be eligible to receive as an “earner” in respect to loss of earnings during the first two entitlement periods is determined by calculating the difference between the injured person’s PAWE and their post-accident earning capacity. 
29.	The injured person’s PAWE is determined by cl 4 of Schedule 1 of the MAI Act. 
30.	Clause 4 of Schedule 1 of the MAI Act provides that sub-cl 4(1) is to be applied to determine PAWE unless any of the circumstances in sub-cl 4(2) exist. 
31.	According to sub-cl 4(1), an earner’s PAWE 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.
32.	In this case, the period of 12 months immediately before the day of the accident is from 30 September 2021 to 29 September 2022 (the relevant period).
33.	The evidence reveals that during the relevant period, the claimant received gross earnings of $46,649.14 as an earner from 30 September 2021 to 29 July 2022 through her employment with Workplace Gender Equality Agency. That is a period of about 10 months. The claimant has earned nothing since the accident.
34.	There is nothing in the provision of sub-cl 4(1) that suggests that the earner must be in employment or self-employment during the whole of the relevant period or on the day immediately before the motor accident. Accordingly, the provision of sub-cl 4(1) applies to the claimant’s circumstances. What is required in calculating PAWE is that the gross earnings of the claimant as an earner during the relevant period are averaged out over the relevant period. 
35.	On that basis, I calculate the claimant’s PAWE to be $897.10 ($46,649.14 divided by 52 weeks = $897.10).
36.	I therefore find that the amount of the claimant’s PAWE for the purposes of weekly payments of statutory benefits under ss 3.6 and 3.7 of Division 3.3 of the MAI Act is $897.10.
37.	In conformity with s 7.13(1) of the MAI Act, my role is to decide what the correct and preferable decision is, having regard to the material before me and any applicable written or unwritten law. I have made my determination based on the material before me and having considered the facts and circumstances of the matter. 
CONCLUSION
38.	The reviewable decision is set aside.
39.	The claimant’s PAWE are determined to be $897.10.
40.	The insurer is to apply PAWE of $897.10 when determining the claimant’s entitlements under Division 3.3 of the MAI Act. 
41.	The effective date of this decision is 1 October 2022.