Issued under s 7.13(4) of the Motor Accident Injuries Act 2017

The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act) and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act.

(a) the amount of post-accident earnings received by the claimant for each fortnight in the period 23 July 2025 to 14 October 2025 is as calculated in this decision;

(b) the post-accident earnings calculated in this decision is subject to whether any of the cash deposit and other transactions highlighted by the insurer as potential income are also earnings received by the claimant;

(c) in relation to the amount of post-accident earnings received on or after

15 October 2025 the matter is remitted back to the insurer for determination of same following provision by the claimant of up to date earnings records to the insurer, as set out in this decision;

(d) this determination is in respect of the dispute arising out of the reviewable decision about the amount of the claimant's post-accident earnings and is not about post-accident earning capacity, and

(e) as the reviewable decision as a whole is about post-accident earning capacity, which falls outside the jurisdiction of a merit review, the reviewable decision is neither affirmed nor set-aside and may presently be maintained by the insurer where there has not been a medical assessment about earning capacity.

1. There is a dispute between Ali Hasan Sheikh (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
2. The claimant was involved in a motor accident on 30 September 2024.
3. The claimant submitted an application for personal injury benefits.
4. The claimant's pre-accident weekly earnings (PAWE) amount was determined to be $910.86.
5. On 25 August 2025 the insurer issued an earning capacity decision in which the insurer determined there was no loss of earnings as a result of the accident and that weekly benefits would therefore cease on 22 September 2025.
6. On 8 September 2025 the claimant requested an internal review of the insurer's decision of 25 August 2025.
7. On 11 September 2025 the insurer issued their internal review decision in which the insurer affirmed their 25 August 2025 decision that the claimant had no loss of earnings and therefore weekly benefits are not payable.
8. The claimant requests a merit review of the internal review decision dated

1. The parties have provided submissions which address the amount of the claimant's post-accident earnings and the extent of the claimant's post-accident earning capacity. For reasons set out further below I will not address in any detail the parties' submissions that go to the issue of earning capacity.
2. As to post-accident earnings, the claimant submits in the period 23 June 2025 to

17 August 2025 he earned a total of $1,951.22 from his sources of income,[1] which averages $273.07 per week. The claimant says this income is verified by payslips from his employer, Brand Influence Group (BIG) and monthly Uber tax summaries. 3. The claimant submits on this basis he has a partial incapacity for the purpose of s 3.7(2) of the MAI Act and is therefore entitled to 85% of the difference between his PAWE and average weekly post-accident earnings as follows:

(a) $910.86 (PAWE) − $273.07 = $637.79, and

(b) 85% of $637.79 = $542.12 per week.

1. Accordingly, the claimant says he remains entitled to weekly statutory benefits under s 3.7 in the amount of $542.12 to date and ongoing, subject to variation depending on future work capacity and earnings received.
2. The insurer submits based on actual post-accident earnings and demonstrated post-accident earning capacity the reviewable decision should be affirmed.
3. In the alternative, the insurer submits the claimant earned $1,286.47 from employment and self-employment in the fortnight ending 18 September 2025, which equates to a weekly average of $643.24. On this basis, the claimant is entitled to $227.48 per week under s 3.7 calculated as follows:

(a) $910.86 - $643.24 = $267.62, and

(b) 85% of $267.62 = $227.48 per week.

1. Further and in the alternative, the insurer submits various transactions in the claimant's bank statements indicate possible additional post-accident earnings. If so, the insurer submits the claimant's entitlement to weekly benefits under s 3.7 is nil because if these other deposits are also income the claimant's post-accident earnings exceed PAWE.

1. This dispute concerns payment of weekly benefits under s 3.7 of the MAI Act which provides:

"Weekly payments during second entitlement period (weeks 14-78 after motor accident)

3.7 Weekly payments during second entitlement period (weeks 14-78 after motor accident)

(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the second entitlement period.

Note : Only a person who was an earner when injured is entitled to statutory benefits under this section--see Schedule 1.

(2) A weekly payment of statutory benefits under this section is to be at the rate of--

of the difference between the person's pre-accident weekly earnings and the person's post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the first entitlement period.

(3) A weekly payment of statutory benefits to a person under this section is not to exceed the maximum weekly statutory benefits amount less the person's post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the first entitlement period.

(4) A weekly payment of statutory benefits to a person under this section is not to be less than the minimum weekly statutory benefits amount or the person's pre-accident weekly earnings, whichever is the lesser."

(a) whether the claimant has capacity to earn more than his post-accident earnings, and

(b) calculation of the claimant's post-accident earnings.

1. The reviewable decision is in fact an earning capacity decision. However, the reasons for the decision include determinations about post-accident earnings. A preliminary conference was held with the parties on 20 October 2025 during which clarification was sought regarding what aspect of the dispute the parties intended to be the subject of this merit review application, noting 17(a) above is a medical assessment matter under Schedule 2, cl 2(d) of the MAI Act and not a merit review matter.
2. Both parties agreed (consistent with merit review jurisdiction) this merit review only concerns 17(b) above. The parties confirmed a medical assessment is not presently sought by either party in relation to 17(a) above. The parties also confirmed they wish to have this merit review determined, regardless of any intention either party has to apply for a medical assessment.
3. Determination of this merit review ahead of any medical assessment simply means this decision may become redundant in the event of a future medical assessment outcome in which it is determined the claimant's post-accident earning capacity is greater than his post-accident earnings. Alternatively, if the outcome of this merit review is that the claimant's post-accident earnings are equivalent to, or greater than, PAWE the need for a medial assessment regarding earning capacity may fall away.
4. This merit review will proceed on the question that falls within merit review jurisdiction arising from the reviewable decision that is, assessment of the amount of the claimant's post-accident earnings for the purpose of s 3.7 of the MAI Act. As such, nothing in this decision is to be taken as a determination of any kind about the claimant's post-accident earning capacity regardless of any comment made in this decision about same.
5. The claimant relies on average weekly earnings over the period 23 June 2025 to

17 August 2025 as representing his ongoing post-accident weekly earnings. It is unclear how this amount is calculated. It does not reconcile with the bank statements. 6. The question is what earnings did the claimant receive in this period? The Uber monthly tax summaries do not assist, as they cover complete months whereas the first and last month of the period relied on by the claimant are incomplete months. Accordingly, the bank statements are the best evidence of earnings received by the claimant. In the period 23 June 2025 to 17 August 2025 the bank statements show earnings received from BIG and Uber totalling $3,083.08 as follows:

1. Applying the average percentage of income ratio for business expenses of 29.03% adopted for the purpose of the PAWE determination (which does not appear to be disputed by the claimant), Uber income in the period relied on by the claimant is $658.32 ($927.61 per above receipted payments less 29.03%/$269.29 for business expenses) which gives total earnings (after business expenses) received from

23 June 2025 to 17 August 2025 in the sum of $2,813.79 ($2,155.47 from BIG and $658.32 net business income from Uber). This equates to a weekly average of $351.72, which is greater than the weekly average contended by the claimant. 2. However, I do not consider s 3.7 permits an average to be taken over any selected period for the purpose of ongoing payment of weekly benefits. Section 3.7 provides:

"A weekly payment of statutory benefits under this section is to be at the rate of--

of the difference between the person's pre-accident weekly earnings and the person's post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, after the first entitlement period..."

1. Clearly, s 3.7 concerns actual post-accident earnings for the week in question when a weekly payment is or is proposed to be made. This means that for each weekly payment the insurer must consider the amount of post-accident earnings received in the week in respect of which the weekly payment is being made.
2. The parties have not clearly identified any specific week(s) within the second entitlement period in respect of which there is a dispute about the difference between PAWE, and post-accident earnings in the same weekly payment week. This appears to be because the dispute is largely about the period after 22 September 2025 being the date on which the insurer determined payments under s 3.7 cease. If there is a dispute about any weekly payment amount before this date, I have not been given sufficient information to determine whether calculation of post-accident earnings and in turn, weekly payments was correct.
3. I also suspect the parties only address post-accident earnings in a cursory way in their submissions because the real dispute (and the reviewable decision as a whole) is about post-accident earning capacity.
4. In relation to earning capacity, the insurer submits the claimant has demonstrated capacity to earn more than he has in some weeks, by reason of his ability to earn more in other weeks. This is a compelling argument. It seems clear the claimant has a demonstrated capacity to earn more than he does in some weeks. It should be remembered that the claimant's employment with BIG and his self-employment as an Uber Eats delivery driver are both casual. It is inherent in the nature of casual employment and self-employment that hours and/or income will vary week to week, regardless of capacity to earn. Further, the claimant is on a student visa which restricts his ability to earn to 24 hours per week (48 hours per fortnight) during the relevant school/university/college study terms even though he may have a capacity to earn more. In all these circumstances, the mere fact the claimant has earned less in some weeks compared to other weeks is not enough, in my view, to rebut the probability that he could have earned more based on earning capacity (as distinct from the claimant's availability or willingness to work more or the availability of more work to him through casual sources), given he has demonstrated the capacity to do so in other weeks.
5. As noted, however, I am only concerned with the amount of the claimant's post-accident earnings in this merit review. Given the wording "[a] weekly payment" (in other words, "each" weekly payment) in s 3.7 emphasised in paragraph 25 above I am of the view the correct approach is that the claimant's actual post-accident earnings for each week (or fortnight) in respect of which a weekly payment is to be made under s 3.7 must be calculated.
6. I therefore do not agree with the claimant's submission that average weekly post-accident earnings during an eight week period (or any other period) chosen by the claimant can or should be used for the purpose of determining the difference between PAWE and post-accident earnings for the purpose of a payment under s 3.7. The other difficulty I have with the claimant's approach is that he has taken an eight week period that pre-dates the date on which the insurer determined weekly payments cease in circumstances where I have not been told of any particular payment dispute in any week of the eight week period proposed by the claimant. The period relied on by the claimant also pre-dates the only certificate of capacity I have been provided with, which is dated 21 August 2025 and certifies the claimant has capacity to work

18 hours per week from 21 August 2025 to 18 September 2025. 7. Bank statements indicate the insurer made weekly payments under s 3.7 on a fortnightly basis, most recently on 6 August 2025, 20 August 2025, 3 September 2025, 17 September 2025 and 1 October 2025. As I do not have any specific information as to the precise fortnight leading up to a payment that each payment covers, I consider the best approach is to take the fortnight period up to and including the day before the weekly payment is made by the insurer. On this basis, I set out below my calculation of the claimant's post-accident earnings based on earnings received, as evidenced by the bank statements:

Uber earnings received net of business expenses

Difference between PAWE ($1,821.72 per fortnight) and post-accident earnings

$458.34 + $103.00 = $561.34 less 29.03% = $398.38

$280.57 + $100.20 = $380.77 less 29.03% = $270.23

$134.52 + $543.97 = $678.49 less 29.03% = $481.52

$239.84 + $210.71 = $450.55 less 29.03% = $319.76

1. Total earnings received in the above 12 week period above are $5,191.02 which equates to a weekly average of $432.58 which is significantly higher than the $273.07 weekly average contended by the claimant. It is also higher than the weekly average for the claimant's proposed period 23 June 2025 to 17 August 2025 calculated by me at paragraph 24 above. This reinforces my view that it is not appropriate to adopt a weekly average taken over a select period, particularly where it is clear the claimant's post-accident earnings (and also likely his earning capacity) have been increasing since the period relied on by the claimant.
2. My calculations do not consider other bank transactions that potentially represent income received by the claimant as the information is insufficient for me to make any finding in this regard. Accordingly, the above calculation of earnings received is subject to adjustment for any other income received by the claimant in the relevant period.
3. If the claimant's post-accident earning capacity is not greater than his post-accident earnings determined above, then the claimant's entitlement to a weekly payment in each fortnight under s 3.7 would be at the rate of 95% of the amounts in the last column on the right (column 6) in the above table.
4. It does seem to me that the claimant has a demonstrated capacity to earn at least up to $1,524.36 per fortnight (approximately $762 per week) if not more, but for the inherently variable nature of his employment (casual and self-employment) and visa restrictions limiting the number of hours he is permitted to work when his course is in session. The claimant may also have variation in his availability (or indeed desire) to work each week due to study or other commitments. However, the issue of post-accident earning capacity falls outside the jurisdiction of a merit review. As such, this decision is limited to determining the question of what post-accident earnings the claimant has received.
5. Given the reviewable decision as a whole is about post-accident earning capacity, I am unable to set the decision aside or make any specific determination about whether a weekly payment is payable or the amount of any weekly payment payable. This is because at present the claimant's entitlement, if any, to weekly payments remains subject to the insurer's determination in the reviewable decision that the claimant's post-accident earning capacity is equal to or greater than PAWE. In the event the insurer maintains this position and the claimant continues to dispute it, the claimant would need to apply for a medical assessment. This was raised during the preliminary conference but neither party sought referral to a medical assessment.
6. Interim directions required the claimant to provide his monthly Uber taxation summaries to date. For reasons not explained the claimant failed to provide his October 2025 Uber tax summary, despite lodging documents on 4 November 2025.
7. The interim directions also required the claimant to provide bank statements to date. For reasons not explained, the claimant only provided bank statements to

20 October 2025 when lodging documents on 4 November 2025. Further, page 6 of the 6-page bank statement dated 30 October 2025 for account ending 8572 has been omitted by the claimant without explanation. 8. Lastly, the claimant has only provided payslips from BIG up to a payment date of

18 September 2025 (in respect of the fortnight ending 14 September 2025). 9. Accordingly, I am unable to calculate post-accident earnings for any fortnight after

14 October 2025. To this extent, the matter is referred back to the insurer to calculate post-accident earnings for any fortnight thereafter in respect of which the claimant makes a claim for a weekly payment under s 3.7 following provision of the following by the claimant:

(a) missing page 6 of 6 of the 30 October 2025 bank statement for account ending 8572 together with ongoing bank statements (from 20 October 2025 onwards) for all ongoing periods in respect of which the claimant claims a weekly payment;

(b) October 2025 monthly Uber tax summary and ongoing monthly Uber tax summaries to the extent ongoing weekly payments are claimed by the claimant;

(c) BIG payslips for the period 15 September 2025 to date and ongoing to the extent ongoing weekly payments are claimed by the claimant, and

(d) provision of details/further information by the claimant about any transactions in the bank statements identified by the insurer as potential earnings, to the extent such details/information is requested by the insurer in respect of any weekly payment period (the insurer is to make specific request for any such information).

(a) there is no jurisdiction to affirm or set aside the reviewable decision, as the reviewable decision is about post-accident earning capacity which is a medical assessment matter under Schedule 2;

(b) to the extent a dispute about the amount of post-accident earnings arises out of the reviewable decision the claimant's post-accident earnings for the period 23 July 2025 to 14 October 2025 are calculated in the table at paragraph 32 above;

(c) the calculation of post-accident earnings in this decision is subject to the insurer requesting and/or receiving information about any other earnings (see paragraph 41(d) above) received in the relevant period(s) and may be adjusted if there are additional earnings, and

(d) in so far as there is a dispute about the amount of post-accident earnings received by the claimant on or after 15 October 2025 the matter is remitted back to the insurer to calculate same following provision by the claimant of the information/documents at paragraph 41 above to the insurer.

(a) the amount of post-accident earnings received by the claimant in the period 23 July 2025 to 14 October 2025 is as calculated in this decision;

(b) the post-accident earnings calculated in this decision is subject to whether any of the cash deposit and other transactions highlighted by the insurer as potential income are also earnings received by the claimant;

(c) in relation to the amount of post-accident earnings received on or after

15 October 2025 the matter is remitted back to the insurer for determination of same following provision by the claimant of up to date earnings records to the insurer, as set out in this decision;

(d) this determination is in respect of the dispute arising out of the reviewable decision about the amount of the claimant's post-accident earnings and is not about post-accident earning capacity, and

(e) as the reviewable decision as a whole is about post-accident earning capacity, which falls outside the jurisdiction of a merit review, the reviewable decision is neither affirmed nor set-aside and may presently be maintained by the insurer where there has not been a medical assessment about earning capacity.

1. In making this decision, I have considered the following:
   • the Application, Reply and supporting documentation;
   • MAI Act;
   • Motor Accident Guidelines, and
   • Motor Accident Injuries Regulation 2017.

[1] As an employee of Brand Influence Group and as a self-employed Uber Eats delivery driver.