The following post regarding a lengthily and ongoing Pre-Injury Average Weekly Earnings (PIAWE) dispute and question(s) in Victoria was submitted via our “Guest Post” section by “Mad Chef”.
PIAWE Story and help Needed
My PIAWE fight with Allianz
By ‘Mad Chef’
- 1st) It’s been going on for over 2 years.
- 2nd) Yep I fully understand how it is calculated- I’ve read everything I have found on it.
Basically I was working for a hospitality place 2 days a week. After they had staffing issues I agreed to work for 6 weeks straight (42 days), until their staff on holidays returned.
During this 6 week period I had an accident (career ending) and could barely work. (2012)
The place closed for business and then changed hands not long after, during my WC Claim being processed.
Here’s the truth folks about PIAWE. I was earning over $800p.w. over the six weeks I was there Pre-accident. My wage assessment (at 80%) according to Allianz was $227
If your boss no longer trades and won’t initially cooperate with WC then you may find yourself in this situation.
The Manager only supplied a few payslips POST accident.
He told Allianz the place was no longer trading and he had nothing more to say and was no longer working there. He was the only point of contact- owner based overseas.
He signed a WC Claim form stating the date I started and the amount I was earning (this was correct).
He gave a statement to a WC investigator (at the beginning of the initial claim) stating when I started and rate of pay and that I had committed to 42 days work. This was correct.
My WC/ Investigator’s forms all said the same.
BUT WC having no proper paperwork and no manager to chase turned this into a living nightmare.
I went to Conciliation in 2013- corrupt Conciliator took it off the table because the agent (his mate-they were having a smoke together and laugh afterwards) was unable to answer how my PIAWE had been assessed!
They did agree to back date it by a month but the previous 5 unpaid months was “too bad, you missed the cut off time frame” HA HA
(My lawyer mate who came as my “friend and support person” was disgusted at this).
I wrote to my SCM asking her to explain how PIAWE had been calculated. Please provide documentation that was used. Initially I was ignored, eventually she responded saying I was lucky to get anything and I didn’t deserve it bla f*cking bla.
I wrote to Team Leader, same shit but this time a few payslips POST injury were emailed as proof on how their calculations had been worked out.
I stated it was illegal under the Claims manual to assess POST injury.
Team Leader, “too bad”
I finally received Group Certs from the work place (2-weird eh?) which didn’t add up.
I had my accountant (at great expense to me) submit Stat Dec to ATO for unpaid tax on earnings that the employer had not declared and sort out the tax side. I submitted this back to Team Leader but he refused to accept the ATO Tax assessment.
I applied for conciliation again since it was thrown out last time (it’s 2014 by now).
My rep from ACCS was really good (seriously- older guy- knew insurance companies were scammers). He emailed me a lot of info re-claims manual and also passed on Allianz’s sh*tty emails that were sent to him.
They had accused me of fraud, then of being a tax dodger, then finally they said that I MADE the employer pay me illegally. (I have owned 2 restaurants, hired many staff, paid many staff and I can assure you that an employee never controls the pay negotiations or paperwork).
Allianz refused beforehand and in conciliation to accept ATO assessment. They refused to answer why they had never sorted this with the manager when the place was still trading.
My ACCS rep said,” your pay must be calculated PRE injury. It is illegal to calculate it post-injury due to limited capacity. If you have been there for only X weeks then it is total pay/x weeks gives weekly wage. He calculated my pay and agreed that it DEFINITELY was not $227 pw. There was close to 40K in unpaid wages owing from Allianz.
He told me to take it to top of VWA, gave me contact details, and had great faith that this person would issue a ruling on it and quickly. He said the documented evidence showed it was obvious WC were breaking the rules (law).
VWA- What a F**king Joke. Well they weren’t getting their hands dirty (or doing their bloody job). She refused to make a decision-she also refused to contact my accountant re her questions, she refused to acknowledge that I had answered all of her queries; she refused to pursue why WC was breaking the PIAWE law. She refused to report Allianz over their law breaking.
I finally tracked down my employer (the owner based overseas) after more than a year.
My lawyer mate drafted a couple of letters to him but after 6 weeks (of him telling a different lie each email), I lodged a complaint with the FairWork Ombudsman to force my employer to issue an amended PAYG Summary.
This was my last avenue of hope. Fair Work are just as useless as VWA. Employer refused mediation after stalling for 5 more weeks. FW can’t investigate if the place is no longer operating (too hard basket).
The employer finally said, “he was working here as a contractor and the day after his injury we hired him as an employee”. WTF
I was seriously injured, my knee looked like it had swallowed a football, I was on crutches and could barely do anything, then I took 10 days off as it had become physically impossible to walk!
(Employer, turns out, was “cooking the books” pre-sale of the business- dodgy records from what info I have)
I had a fairly serious meltdown after this and completely fell to pieces. It had finally and completely knocked the fight out of me. It has been all of you here at AWCVD that has got me up off the floor, to fight again- Thank you.
To date I am waiting to go to Magistrates Court after ACCS issued a Notice of Genuine Dispute (2015).
MBB are my Lawyers but have said it would take a year to have it heard. Only 5 court dates a year in this region (Vic). But they would take it to court.
I have been refused Disability Pension as I have more surgeries needed.
Last month I have been given an extra $25 on Newstart Allowance (with certificate of incapacity).WooHoo!
This has cost me my career of 30 years that I loved and everything else in between.
At almost 50 I have no possessions left (sold them all), no self-esteem/ confidence, no way to retrain, no financial independence. I have been living in a friend’s caravan on their farm (they have saved my life doing this and I am eternally grateful) but- no running water/ heating/ limited power for lights for 2+ years. The bathroom is 50mt away up hill and upstairs. I have undergone 3 rounds of surgery in 18 months in these conditions but cannot undergo full knee replacement recovering in a caravan in a paddock.
I have to sort my wages and am dreading the thought of court and Allianz.
Anyone got any advice or had a similar situation?? Love to hear from you.
Mad Chef (