The reviewable decision is about the calculation of the claimant's pre-accident weekly earnings (PAWE) which concerns the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accidents Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act.

1. The reviewable decision of the insurer dated 27 February 2025 which calculated the claimant's PAWE as $562.26 is set aside.
2. The claimant's PAWE figure is $1,306.
3. The insurer is to pay the claimant back payments in accordance with this decision.

A brief statement setting out my reasons for the decision is set out below.

1. Mr Rauf (the claimant) was involved in a three-vehicle motor accident on

22 November 2024. The claimant was the driver of a car that was stationary at traffic lights when a vehicle hit the vehicle behind him which then collided into the rear of the claimant's car. 2. The claimant says he sustained injuries to his cervical spine, right shoulder and lumbar spine and an acute stress disorder as a result of the motor accident. 3. The claimant made a claim for statutory benefits with AAI Limited t/as GIO (the insurer), the third-party insurer of the vehicle that he says caused the accident. 4. At the time of the motor accident, the claimant was a self-employed Uber and Didi rideshare driver. 5. The insurer made the following decisions when calculating the claimant's pre-accident weekly earnings (PAWE):

(a) 23 January 2025 - $782.02;

(b) 6 February 2025 (internal review) - $1,652.12, and

(c) 27 February 2025 - $562.26.

1. The claimant disputed the insurer's decision of 27 February 2025 which calculated his PAWE at $562.26.
2. The claimant lodged with the insurer an application for internal review of the insurer's decision. The insurer declined to conduct a review.[1]
3. The claimant subsequently lodged an application for merit review at the Personal Injury Commission (the Commission). I have been asked to deal with the application as the merit reviewer.

1. In determining the merit review, the merit reviewer is to decide what the correct and preferable decision is having regard to the material before the merit reviewer including any relevant factual material and the applicable written or unwritten law.[2]
2. The merit reviewer may exercise all the functions under the Motor Accidents Injuries Act 2017 (MAI Act) on the insurer.[3]
3. In determining a merit review application, the merit reviewer may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision the merit reviewer set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the insurer in accordance with any directions of the merit reviewer.[4]

1. The merit reviewer is to issue the parties with a certificate as to the determination and is to attach a brief statement to the certificate setting out the reviewer's reasons for the determination.[5]

1. The decision under review is the insurer's decision dated 27 February 2025 where the claimant's pre-accident weekly earnings (PAWE) was calculated at $562.26. It is useful however to also briefly set out the findings of the insurer's internal review decision dated 6 February 2025.

1. Unlike the initial decision of 23 January 2025 where the claimant's PAWE was calculated solely upon the 2024 tax return, the insurer had a substantial amount of primary material when making the internal review decision. By primary material, I refer to the Uber and Didi account summaries, bank account statements and individual tax returns and notice of assessments for the tax years 2023 and 2024.
2. The insurer decided against using the claimant's tax documents as these included periods outside the 12 months immediately before the date of the accident. The insurer also decided against using the Uber and Didi account summaries, as these showed total income for a given month and not the date on which payment was made.
3. The insurer used the bank statements and was satisfied that the claimant received a gross income of $133,775 for the 12 months immediately before the date of the accident. Applying the merit review decision of Ozcan v QBE Insurance (Australia) Limited[6] the insurer found GST is to be excluded from PAWE. As such, the claimant's gross income less 10% GST is $120,397.50.
4. As a self-employed ride share driver, the insurer noted that business-related expenses are to be deducted from the gross income. The insurer was unable to identify from the bank accounts which outgoing payments comprised of business expenses. The insurer gave examples of the multiple insurance payments and attendances at service stations each month and whether they were for business purposes.
5. At the insurer's request, the claimant provided clarification of his expenses as follows:

(a) petrol: $10,000;

(b) insurance: $2,400;

(c) car registration: $1,700;

(d) car maintenance: $6,000;

(e) car washes: $2,000;

(f) phone and internet: $1,200;

(g) tolls: $8,000; and

(h) car depreciation $3,187.50.

1. Based on the above, the insurer calculated the claimant's expenses to total $34,487.50.
2. The claimant's PAWE was calculated as $120,387.50 - $34,487.50 = $85,910.00 / 52 weeks = $1,652.12 (as rounded).

Decision dated 27 February 2025 (decision under review)

1. The insurer's reasons provided for the decision under review are brief. The insurer received a report from Procare dated 26 February 2025 which contained the opinion of forensic accountant Mr Paul Croft.
2. The insurer relied on the opinion of Mr Croft who recalculated the claimant's PAWE as follows:

1. I will elaborate more on the report of Mr Croft below.

1. Preliminary conferences were held with the parties on 10 June 2025 and 15 July 2025. The central issue in dispute was the amount of the claimant's business expenses that are to be deducted from the total income when calculating the claimant's PAWE.

1. The claimant indicated that his total income for the financial year 2023-2024 was $123,989 [7]. This figure excluded the service fees and commission of 28% which were already deducted by rideshare carriers Uber and Didi.
2. The insurer relied on the calculations of Mr Croft, who found the claimant's total income to be $110,447 for the relevant period.[8] Mr Croft tallied the claimant's weekly Uber payouts for the period 20 November 2023 to 25 November 2024 and arrived at a figure of $101,932. The amount of $2,905 was deducted from this figure as this was payment received outside of the relevant period. The total came to $99,027 with the adjusted total less 10% GST being $90,025.[9]
3. With the income from Didi, Mr Croft tallied the claimant's monthly Didi bank deposits for the period November 2023 to November 2024. This totalled $32,451 with the adjusted total less 10% GST being $29,501.

1. It is generally accepted that business expenses should be deducted from the business income for the purposes of a PAWE calculation.[10] This has been the position held by previous merit reviewers and there is no issue raised by the parties.
2. The claimant's position is that Service Fees and Commission from Uber and Didi for the 2024 financial year are:

(a) Uber = $55,949.84 ($156,657.84 - $100,708); and

(b) Didi = $12,934.76 ($36,215.76 - $23,281).[11]

1. He indicates that his remaining business expenses comprise of:

(a) GST total amount: $4,124;

(b) tax amount: $4,311;

(c) petrol: $10,000;

(d) insurance: $2,400;

(e) car registration: $1,700;

(f) car maintenance: $6,000;

(g) car washes: $2,000;

(h) phone and internet: $1,200, and

(i) tolls: $8,000.

1. The claimant also purchased two vehicles for work purposes - a 2015 Lexus on

16 August 2023 for $14,000 and a 2018 Toyota Camry Hybrid on 20 June 2024 for $25,500. 2. The claimant does not indicate what his PAWE should be. The claimant only says he "did not agree" with the insurer's calculation of $604.38 gross per week in the reviewable decision.[12] The claimant says the calculation of $1,652.12 in the insurer's internal review decision "is much more reflective of my income prior to the subject accident as it took into account all of the records [he] had provided."[13] 3. From the insurer's perspective, in the claimant's 2023 tax records[14] Mr Croft noted that there was a dissection of "other expenses".[15] Mr Croft was able to determine the claimant's variable expenses (comprising of commission expense, fuel/oil and tolls) to be $75,992. Mr Croft stated that expressed as a percentage, financial year 2023 variable expenses are 49.2% of total income. 4. The claimant's 2024 tax records,[16] did not, according to Mr Croft, include a dissection of other expenses. Without a dissection of that balance, he could not:

(a) estimate the ratio of FY24 variable expenses to total income; and

(b) confirm that FY24 "other expenses" have been calculated in a manner consistent with FY23 and represent a complete and accurate record of the claimant's expenses incurred in FY24.

1. At the preliminary conferences the following matters were agreed:

the calculation of the claimant's PAWE falls under schedule 1, clause 4(1) of the MAI Act which provides: "4(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 during the 12 months immediately before the day on which the motor accident occurred...";

(b) the relevant period for which the calculation of PAWE is based is from 22 November 2023 to 21 November 2024, and

(c) the claimant's gross ride-share earnings are derived solely from his own personal exertion and none from any alleged third parties.

1. The claimant's gross earnings (excl GST) for the relevant period from Uber is calculated in the amount of $90,025. This is based on the weekly statements from Uber.
2. Similarly, the gross earnings from Didi is calculated at $29,501 (excl GST) based on the monthly statements from Didi.
3. These findings are consistent with those found by Mr Croft. It is evident from Mr Croft's report that the amounts were verified by reference to the claimant's provided CBA accounts.
4. I do not accept the claimant's figure of $123,989 as this is based upon his 2024 tax documentation which includes periods outside the relevant period. The information from his rideshare statements accurately sets out the claimant's gross earnings and his bank account statements verify when the payments were received.
5. The combined gross earnings from Uber and Didi are therefore $119,526. This includes the combined toll and airport fee reimbursements in the amount of $9,078.

1. The claimant's evidence comprises of an itemised list of the claimant's expenses and the amounts paid. No evidence in support of the amounts were provided.
2. Directions were issued for the claimant to provide a concise record of his fixed and variable expenses for the relevant period, with the relevant evidence in support of such amounts. The claimant did not comply with the directions, instead indicating that the matter be determined on the papers.
3. In the absence of a concise record, the claimant's tax information for FY23 and FY24, although covering periods outside of the relevant period, is the best primary source information before me and will be used for the calculation of the claimant's fixed and variable expenses.

1. Mr Croft estimated the claimant's variable expenses by using the claimant's FY23 Notice of Assessment which showed total FY23 variable expenses comprising of commission, fuel and tolls to amount to $75,992. Expressed as a percentage, FY23 variable expenses were 49.2% of total income. Mr Croft applied this percentage as being representative of the claimant's variable expenses for FY24.
2. I do not accept Mr Croft's calculation of the claimant's variable expenses by way of applying the previous financial year's total variable expenses expressed as a percentage.
3. While it is unfortunate that commission expenses are not listed in the "detailed print"[17] for the claimant's individual tax return for FY24, such variable expenses are documented in the FY23 Notice of Assessment (see paragraph 44 above) to include commission expenses, fuel and tolls.
4. I note that commission payments are already excluded from the claimant's gross earnings as shown in the account summaries from Uber and Didi covering the relevant period.
5. By way of example, I refer to the Uber Weekly Statement for the period 19 August 2024 to 26 August 2024. The claimant received fare earnings of $2,880.63. Following a deduction of $770 for an Uber "service fee", the claimant's earnings were $2,146.79.
6. In my view, to account for commission payments already deducted from the claimant's gross earnings would be inappropriate, as it would serve to levy the expense on the claimant twice and unfairly reduce his gross earnings.
7. Tolls and airport fees as mentioned above have already been reimbursed and accounted for in the claimant's gross earnings.
8. I accept fuel and oil as listed in the FY24 Car Vehicle Expenses Worksheet as $15,694.
9. Total variable expenses are therefore calculated as $15,694.

1. I accept Mr Croft's use of the FY23 information as being likely representative of the claimant's expenses with respect to cleaning ($1,651) and mobile phone ($2,158).
2. I accept the FY24 information as being representative of the claimant's expenses with respect to repair and maintenance ($2,154), registration ($1,050) and insurance ($1,650).
3. The FY24 depreciation worksheet showed the total deduction for the decline in value of the Lexus and Toyota Camry was $27,275.
4. Total fixed expenses are therefore calculated as $35,938.

Total expenses (fixed $35,938 + variable $15,694) = $51,632

Period of calculation: 22 November 2023 to 21 November 2024 (52 weeks)

1. The insurer's reviewable decision dated 27 February 2025 is set aside. For the above reasons, I find that the claimant's PAWE is $1,306 (as rounded).

[1] Email from insurer to claimant's legal representative dated 5 March 2025.

[6] [2023] NSWPICMR 54.

[7] Paragraph 25 of the claimant's statement dated 9 May 2025.

[8] Schedule 7 of the report of Mr Paul Croft of Procare Forensics dated 25 February 2025.

[9] Schedule 3 of the report of Mr Paul Croft of Procare Forensics dated 25 February 2025.

[10] Insurance Australia Limited t/as NRMA Insurance v Iskandar [2024] NSWPICMRP 5 (26 November 2024).

[11] At paragraph 25 of the claimant's statement dated 9 May 2025.

[14] Comprising of the claimant's 2023 Individual Tax Return and Notice of Assessment.

[16] Comprising of the claimant's 2024 Individual Tax Return and Notice of Assessment.