Category: Uncategorized

#51 – Claimant Not Entitled to Both WC Payments and CTP Payments for Same Period

Decision

Jaggi v AAI Limited t/as AAMI [2026] NSWPICMR 30

Sixty-Second-Or-Less Summary

A Claimant is injured in a motor accident. He was already on workers compensation benefits as a consequence of a prior work injury.

Is the Claimant entitled to weekly payments from both the CTP Insurer and the Workers Compensation Insurer for the same period?

In Jaggi v AAMI, a Merit Reviewer determined that the Claimant had not suffered any loss of earnings, as a consequence of the injury he sustained in the motor accident given the ongoing weekly payments he continued to receive from the Workers Compensation Insurer.

The Merit Reviewer also determined that the Claimant’s bid to recover weekly payments from both Insurers offended the rule against double compensation.

Principles

✅ In addition to being “an earner” and suffering an injury, a claimant is not entitled to weekly payments unless they establish that the injury caused a loss of earnings.

✅ A claimant has not suffered any loss of earnings if they are already totally incapacitated for work as a consequence of a prior work injury.

✅ A claimant is not entitled to weekly payments from a CTP Insurer and a Workers Compensation Insurer, for the same period, because that would be contrary to the rule against double compensation.

Facts

The Claimant was injured in a motor accident on 26 April 2024.

The Claimant subsequently made a request for the back payment of weekly benefits for the period from 13 January 2025 to 25 March 2025.

Prior to his motor accident, however, the Claimant lodged a workers compensation claim for a psychiatric injury. The Claimant was certified unfit to work, as a consequence of his work injury, from 13 June 2024 to 21 March 2025.

The Insurer refused the Claimant’s request on the grounds that the Claimant received workers compensation benefits for the same period and, therefore, had not suffered a total or partial loss of earnings for that period.

The Insurer’s determination was affirmed on Internal Review and the Claimant sought Merit Review.

The Merit Reviewer’s Decision

The Merit Reviewer agreed that the Claimant was not entitled to weekly payments, from the CTP Insurer, for the relevant period, for the following reasons:

🟪 To satisfy the requirements of section 3.7 of MAIA, and to become entitled to weekly payments, a claimant must demonstrate they were “an earner”, they were injured as a result of a motor accident and they suffered a total or partial loss of earnings as a result of that injury.

🟪 In this dispute, the Claimant was “an earner” and the motor accident caused him an injury.

🟪 The Claimant, however, did not lose any earnings as a consequence of the injuries he sustained in the motor accident because he was already certified totally unfit for work by reason of his prior work injury.

🟪 Even if the Claimant satisfied the requirements of s 3.7(1) – which he does not – he would not be entitled to weekly payments from the CTP Insurer because he had already received weekly payments, for the same period, from the Workers Compensation Insurer. Compensating the Claimant for the same period would offend the rule against double compensation.

My Perspective

The decision in Jaggi confirms what should, perhaps, be obvious; namely, that a Claimant cannot receive weekly payments from both the CTP Insurer and a Workers Compensation Insurer for the same period, even if the payments relate to injuries sustained in different accidents.

(Indeed, the Merit Reviewer expressed concern that the Claimant also appeared to have received NewStart benefits for the same period.)

As the Merit Reviewer observed, the rule against double compensation was neatly defined by Chen J in McMillan Investment Holdings Pty Limited v Mangos & Ors (No 3) [2023] NSWSC 1327, at [53] as follows:

“The rule has been explained as a principle (`the principle of full satisfaction prevents double recovery’), and it reflects the fundamental idea that a party `cannot recover in the aggregate from one or more defendants an amount in excess of [their] loss.”

PJH

#48 – Treating Specialist’s Report Found to Be a Request for Treatment Approval

Decision

Insurance Australia Limited t/as NRMA Insurance v Jennar [2026] NSWPIC 320

Sixty-Second-Or-Less Summary

A Claimant’s treating doctor provides a report in support of a three-level cervical fusion. The letter serving the report on the Insurer, however, only specifically requests approval of an MRI scan.

Does the treating report, in itself, constitute a request for surgery approval

In IAG v Jennar, a PIC Member noted that the Claimant’s Solicitors should have formally requested approval for the surgery. The Member concluded, however, that in the context of this matter, the specialist’s report, alone, constituted a request for surgery approval. The context included the fact that a PIC Medical Assessor had already found that a two-level fusion was inadequate and that a three-level fusion might be appropriate.

Principles

✅ Ideally, a Claimant should write to the Insurer to formally request approval of treatment and care.

✅ In certain circumstances, however, the context of a treating doctor’s report could constitute a request for approval even without a clearly worded covering letter.

Facts

A dispute arose between the parties regarding whether the accident caused the Claimant threshold injuries and whether a proposed three-level discectomy and fusion was reasonable and necessary. Both disputes were referred to the same Medical Assessor for assessment.

The Insurer contended, however, that the assessment regarding the discectomy and fusion was premature because the Claimant had not yet requested the Insurer’s approval for that specific procedure. It followed, in the Insurer’s submission, that the Insurer had not yet determined whether the proposed surgery was reasonable and necessary and related to the motor accident.

The Claimant’s Solicitor argued, however, that the content of the specialist’s report conveyed a clear intention to seek approval for the proposed surgery.

Whether the Claimant had sought approval of the surgical procedure was referred to a PIC Member for determination via a Miscellaneous Assessment.

The Member’s Decision

The Member determined that the letter from the Claimant’s Solicitor did not constitute a request for approval of the surgical procedure because, by its terms, the letter only sought approval of an MRI scan.

The Member determined, however, that the treating report enclosed with the Claimant’s Solicitor’s letter did constitute a request for treatment approval for the following reasons:

🟪 The insurer was aware that a PIC Medical Assessor had already found that a two-level cervical fusion was not reasonable and necessary because it would not provide adequate neural decompression and had raised whether a three-level fusion might be more appropriate.

🟪 The treating specialist’s report picked up on the PIC Medical Assessor’s reasons and supported a three-level fusion.

🟪 The nature of the report was a request that the insurer approve the proposed surgery.

🟪 Whilst not a perfect example of a request for approval, the Insurer was on notice that the treating specialist was providing information in support of a request to approve the proposed surgery.

🟪 A simple letter requesting approval of the surgery and the costings would have been appropriate, but the Claimant’s failure to do so is not a fatal flaw because the legislation does not prescribe a particular format.

My Perspective

The decision in Jennar indicates that Insurers should look at the full context to determine whether a treating specialist’s report constitutes a request for approval of treatment and care.

As the Member indicated, best practice dictates that the Claimant or their legal representatives should formally request approval of treatment and care in a covering letter.

The background circumstances and the content of the specialist’s letter, however, can constitute a request for approval of treatment and care without a specific covering letter.

In this instance, the treating specialist’s report constituted a request for surgery approval because it was part of an ongoing conversation about what surgery might help the Claimant, as distinct from a random, one-off report which lacked any background context.

PJH

#23 – Redundancy Payments and Early Termination Payments Should Not Be Included in PAWE

Decision

CPP v Youi Pty Limited [2025] NSWPICMR 27

Sixty-Second-Or-Less-Read

A Claimant receives a redundancy payment and an early termination payment when their pre-accident role was made redundant. Can those payments be included when calculating the Claimant’s pre-accident weekly earnings?

In CPP v Youi Pty Ltd, a Merit Reviewer determined that Payments made to compensate a former employee because their role no longer exists are not income gained in return for labour or services and are, therefore, not earnings. It followed that neither the redundancy payment nor the early termination payment could be included in the Claimant’s pre-accident weekly earnings.

Principles

✅ The term “earnings” in clause 4(1) of Schedule 1 to the Motor Accident Injuries Act 2017 (MAIA) should be given its ordinary English meaning of “income gained in return for labour or services provided” by the claimant.

✅ Payments made to compensate a former employee because their role no longer exists – such as redundancy payments and/or early termination payments – are not income gained in return for labour or services.

✅ Furthermore, a redundancy payment and an early termination payment are not payments received “as an earner” because they are made when the Claimant’s employment has been terminated.

Facts

Following a motor accident, the Claimant sought to recover weekly benefits pursuant to Part 3.3 of MAIA.

The Claimant and the Insurer, however, were not able to agree on the Claimant’s Pre-Accident Weekly Earnings (PAWE).

The Claimant argued that both a redundancy payment and an employee termination payment should be included in the calculation of his PAWE. The Insurer disagreed and argued that these payments were not “earnings”.

The dispute proceeded to the Personal Injury Commission for Merit Review.

Relevant Definition

Clause 4(1) of Schedule 1 to MAIA provides that:

“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…“

The Merit Reviewer’s Decision

The Merit Reviewer agreed that the redundancy payment and the early termination payment should not be included in the calculation of the Claimant’s PAWE, for the following reasons:

🟪 According to clause 4(2) of Schedule 1 to MAIA, the disputed payments may only be included in the Claimant’s PAWE if they are (a) “earnings” and (b) received by the Claimant as “an earner”.

🟪 Whilst the term “earnings” are not defined by MAIA, the ordinary English meaning of “earnings” is “income gained in return for labour or services provided by an earner”.

🟪 An early termination payment does not constitute “earnings” because it is not a payment made in return for labour or services which the Claimant provided. Rather, the early termination payment was made in lieu of providing notice of his termination.

🟪 Similarly, a redundancy payment is designed to compensate an employee for the inconvenience and hardship that might arise from their role no longer being required.

🟪 Furthermore, given that both the redundancy payment and the early termination payment were made when the Claimant’s employment was terminated, they were not payments made to the Claimant “as an earner” as required by the definition of PAWE in clause 4(1) of Schedule 1.

For these reasons, the Merit Reviewer excluded the redundancy payment and the early termination payment when calculating the Claimant’s PAWE.

Pete’s Perspective

The decision in CPP is helpful because it further clarifies what is included and what is not included in the concept of “earnings”.

The decision makes it clear that “earnings” is limited to income received by the Claimant in return for their labour or their services. It does not include other types of payments designed to compensate them for their role being made redundant or because they have not been provided with notice.

The Merit Reviewer acknowledged that some one-off payments may still constitute “earnings” if the payment is in return for labour or services. For example, a one-off bonus would constitute “earnings” because the bonus is paid to reward performance.

PJH