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 dated 25 November 2024 is affirmed, namely that the claimant's PAWE is $159.50 (rounded).

1. Mr Raza (the claimant) was involved in a motor accident on 5 June 2024. The claimant was riding his motorbike in the right-hand lane when a ute on the opposite side exited a petrol station driveway and made a left turn onto the road. Instead of staying in the left lane, the claimant says the ute veered into the right lane and collided with the claimant.
2. The claimant says he sustained a radial fracture and psychological sequalae as a result of the motor accident.
3. The claimant was 17 years of age at the time of the motor accident. His father, Asif Moosa, made a claim on his behalf for statutory benefits[1] with Youi (the insurer), the third-party insurer of the vehicle that he says caused the accident.
4. Mr Moosa is the appointed representative of the claimant in the merit review proceedings at the Personal Injury Commission (Commission).[2]

1. At the time of the motor accident, the claimant was working in casual employment at a hamburger restaurant.
2. The insurer made a decision that the amount of the claimant's pre-accident weekly earnings (PAWE) was $159.50.[3]
3. The claimant says this figure is incorrect and seeks a determination from the Merit Reviewer that his PAWE is $400 gross per week.

1. The insurer's calculation of the claimant's PAWE was based on payslips provided in the 52-week period (5 June 2023 - 4 June 2024) immediately before the motor accident. This comprised of 42 weekly payslips amounting to a total of $8,293.37. The insurer divided this figure by 52 weeks and arrived at a figure of $159.48. After rounding, the insurer determined that the claimant's PAWE was $159.50.
2. The claimant submits that the insurer's decision is incorrect because additional factors regarding his employment circumstances should be considered in order to determine his PAWE benefits. These are:

"The claimant only began working in 2023, at 17 years of age, and was therefore not receiving many shifts from his employer. Particularly, the claimant reports that he was only getting roughly one shift a week, and occasionally no shits. However, as time progressed, the claimant began receiving more shifts from his employer each week. The claimant emphasises that the was working a minimum of 20 hours a week at the time of the accident, and notes that his employer can provide written correspondence confirming that his weekly shifts were fixed at a minimum of 20 hours per week.

The claimant highlights that his age and inexperience when beginning his employment initially inhibited him from receiving many shifts. However, due to the progression of his employment and his consequent increased number of shifts at the time of the accident, the claimant believes that he is entitled to gross weekly payments of greater than $159.50.

The claimant relies on his payslips dated 12 May 2024, 26 May 2024, and 2 June 2024, and submits that his PAWE should be calculated at $400.00 gross weekly, in accordance with the minimum fixed shifts of 20 hours per week that he was receiving at the time of the accident."

1. The insurer's reply submissions state that its internal review decision is correct.

1. At the preliminary conference on 25 March 2025, Ms Starnovsky, the claimant's representative, stated that she believed the insurer's calculations were correct but it was the claimant's appointed representative, Mr Moosa, that wanted confirmation from a Merit Reviewer that the calculations were indeed correct.
2. There was also agreement that the insurer's calculations were made under the correct provisions of the legislation, namely s 4(1) which defines "pre-accident weekly earnings" as:

"(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."

1. I referred Ms Starnovsky to her submissions about the employer allegedly fixing the claimant's shifts to a minimum of 20 hours per week. I asked whether this information was a document already in existence at the time of the motor accident or whether it was information that was subsequently sought from the employer.
2. Ms Starnovsky stated it was the latter and as she was not hopeful of obtaining the information, the submission was no longer pressed. Given the concessions from the claimant, I stated that it was my preliminary view that the insurer's calculation of the claimant's PAWE was correct. Ms Starnovsky, however, stated that the claimant wanted a determination on his application for merit review.
3. I advised the parties that I would provide a determination with a brief statement setting out my reasons for the determination.[4]

1. There is no dispute that the claimant is an earner.
2. There is no dispute regarding the insurer's table[5] setting out the various weekly payment amounts the claimant received in the 52 weeks before the motor accident.
3. The parties are in agreement that sch 1, cl 4(1) applies in the calculation of the claimant's PAWE.
4. If another sub-clause in cl 4 applies, the onus is on the claimant to show this. There is no evidence before me to suggest any of the other sub-clauses in cl 4 apply.
5. In accordance with Allianz Insurance Australia Limited v Shahmiri,[6] the claimant's PAWE is calculated by taking his earnings over the whole of the 12-month period immediately before the day of the accident and dividing it by 52.
6. Therefore, the calculation of the claimant's PAWE is:

1. The reviewable decision dated 25 November 2024 is therefore affirmed.

[1] Application is dated 16 August 2024.

[2] Appointed Representative Certificate issued by the Commission under s 7.47 of the MAI Act.

[3] Insurer's internal review decision dated 25 November 2024.

[5] At [29] of claimant's bundle and reproduced in Appendix A.

[6] [2022] NSWSC 481 [at 71].