Adjustments to weekly benefits when your earnings, prior to your motor vehicle accident, were impacted by COVID-19

*Contents of this blog relates to NSW legislation.

The COVID pandemic had a devastating impact on the population.

One section of the community that was particularly impacted were those who were involved in motor vehicle accidents within shortly after the COVID-19 lockdowns of 2021 in NSW.

Calculation of Pre-accident Weekly Earnings and adjustments

Pursuant to the Motor Accident Injuries Act 2017 (NSW) (‘the Act’), all persons injured in a motor vehicle accident are entitled to payment of their weekly wages for a period of 52 weeks after the accident. The amount that the injured person is to receive is calculated by totalling all their earnings in the 52 weeks prior to their accident, and then dividing that total by 52. This gives you your pre-accident weekly earnings (PAWE).

It is important to note that within the Act, there are provisions that allow for an adjustment of the above period. Among other exceptions, the Act allows for an adjustment where:

            “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.”

Essentially, rather than looking at your earnings for the entire 52 week period, the insurer will only consider your earnings in the period where you returned to work and started to earn continuously.

The return to work after the COVID lockdowns and how this impacts your PAWE

Up until recently, the Personal Injury Commission was of the view that returning to work after a COVID lockdown cannot be considered “action taken by the earner”. In the matter of Mackary v Allianz Australia Insurance Limited, the Commission took a narrow view and found that the increase in the claimant’s earnings, post-COVID lockdown, was not a result of action taken by the claimant. The Commission was of the view that the injured person was compelled to return to work once the lockdowns were lifted and that this was not his own choice.

Recently, Turner Freeman Lawyers was able to successfully argue in the Personal Injury Commission against this decision. In the matter of Haouli v Insurance Australia Limited t/as NRMA Insurance, the Commission found that the return to work after the lifting of the COVID lockdown was a result of action taken by the earner. The Act does not allow for assumptions that any person would have returned to work after the COVID lockdown. Though returning to work was the best option for most, no person was forced to do so. Therefore, the injured person’s PAWE was adjusted to only account for the period immediately before his accident when he returned to work, rather than the entire 52-week period.

Get in touch with us

Though the COVID lockdowns are long behind us now, there are many injured persons who will be receiving an unfair amount for their PAWE each week. If you believe you may be impacted by this, we at Turner Freeman Lawyers can help you receive the benefits you deserve.

At Turner Freeman, we have specialist personal injury lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our lawyers are located across NSW including in our offices in Sydney, Parramatta, Wollongong, Newcastle and Toronto. Contact us today on 13 43 63 or 02 8833 2500.