Issued under s 7.13 of the Motor Accident Injuries Act 2017

In accordance with Division 7.4 of the Motor Accident Injuries Act 2017, my determination of the merit review matter is:

1. In accordance with s 7.13(3)(d) of the Motor Accident Injuries Act 2017, I remit the issue about the calculation of the claimant's pre-accident weekly earnings for reconsideration by the insurer.
2. The insurer's reconsideration is to be made in accordance with the attached reasons and the recommendations contained therein.

A statement setting out my reasons for the determination is included with this certificate.

1. Damir Turudic's brother Frank was killed in a motor accident on the Gore Hill Freeway in Sydney on 18 June 2025. Mr Turudic says he sustained psychological injury as a result of his brother's sudden and untimely death and made a claim again Allianz for statutory benefits pursuant to the Motor Accident Injuries Act 2017 (the MAI Act).
2. According to his claim form, Mr Turudic was first notified of his brother's death by Victorian Police on 31 July 2025 after which he was contacted by New South Wales Police on 7 August 2025. The State Insurance Regulatory Authority (SIRA) then spoke with Mr Turudic on 8 August 2025 and alerted him to his right to make a claim which he did on or about 29 August 2025.
3. A dispute has arisen in the claim about the amount of weekly statutory benefits to be paid to Mr Turudic. The claimant has referred the dispute to the Personal Injury Commission (the Commission) for Merit Review.
4. The dispute is a declared Merit Review matter pursuant to Schedule 2(1)(a) of the MAI Act.
5. The President of the Commission (or his delegate) allocated the proceedings to me for determination, and I held a teleconference with the representatives of the parties on 11 March 2026.

1. Mr Turudic's claim for statutory benefits is made under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
2. Division 3.3 contains a number of provisions relevant to the entitlement to weekly benefits. It identifies, amongst other things, three distinct entitlement periods,[1] sets a maximum and minimum amount that can be paid by way of weekly statutory benefits[2] and allows for the cessation, termination or suspension of payments.[3]
3. Essentially an injured person who is an "earner" and who suffers a "loss of earnings" or "loss of earning capacity" (total or partial) because of a motor accident is entitled to weekly benefits (paid fortnightly) based on a certain percentage of the difference between what were their "pre-accident weekly earnings" (PAWE) and what they have earned or what they have the capacity to earn post-accident.
4. Schedule 1 to the MAI Act provides definitions which must be applied when interpreting the provisions in Division 3 including the following which are relevant to the current dispute:

(a) who is an "earner" - an earner includes persons who are employed or self-employed persons in full or part time employment (cl 2);

(b) what a "loss of earnings" is - a loss incurred or likely to be incurred in income from personal exertion (c 3), and

(c) what an injured person's "pre-accident weekly earnings" are and how they are to be calculated (cl 4).

Clause 4 and the calculation of pre-accident weekly earnings

1. Clause 4 provides for the majority of earners who will have been in the same employment situation for the year before the accident as follows:

"(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. Clause 4(2) provides four alternative methods of calculating PAWE for situations which do not fit within sub-cl 1 one of which is:

"(b) if subclause (3) applies - the weekly average of the gross earnings the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred."

1. Clause 4(2)(b) refers to cl 3 which provides as follows:

"This subclause applies if, during the 12 months immediately before the day of the motor accident, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred."

1. A note at the conclusion of the sub-clause gives several examples of the "change of circumstances" contemplated in cl 4(3) including "a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards".

1. Part 7 of the MAI Act provides for the resolution of disputes that arise in statutory benefits claims.
2. Under Division 7.3, some decisions made by insurers must be internally reviewed before the dispute can be referred to the Commission for assessment or determination by Merit Reviewers under Division 7.4, Medical Assessors or Members of the Commission depending upon the type of dispute.
3. Schedule 2 of the MAI Act recognises 47 different dispute types and declares some to be Merit Review matters, others to be Medical Assessment matters and others to be Miscellaneous Claims Assessment matters. Relevantly to the subject matter of the current proceedings, Schedule 2 cl (1) (a) declares the following to be a Merit Review Matter: "the amount of statutory benefits that is payable under ... Division 3.3 (Weekly payments of statutory benefits to injured persons)."

Insurer decision making and the parties' submissions

1. On 23 December 2025, Allianz determined that the claimant's PAWE was $2,526.85. This was calculated by averaging his banked earnings over a 40-week period and was not made on the basis of the actual days he had worked.
2. Mr Turudic took issue with that decision and sought an internal review suggesting his PAWE should be calculated at $3,094.71.
3. On 13 January 2026 Allianz completed its internal review, set aside the original decision and determined that the claimant's PAWE was $2,591.64. Allianz, in its internal review:

(a) accepted (at paragraph 9) the claimant was an earner;

(b) said (at paragraph 15) the claimant was earning continuously for a period of at least 12 months;

(c) asserted (at paragraph 20) that the claimant's move to Everything Data Pty Limited (Everything Data) was a "significant change in [his] earning circumstances", and

(d) calculated his earnings received in accordance with Schedule 1, cl 4(2)(b) of the MAI Act during "the period from when the change of circumstance occurred to immediately before the day of the motor accident."

1. The insurer's calculation was based on the total gross income received from employment at Everything Data ($101,074) divided by the 39 week period from 18 September 2024 to 17 June 2025 (the day before the accident).
2. The insurer referred to the cases of Ford v QBE Insurance (Australia) Limited and Suman v Allianz Australia Insurance Limited[4] submitting that these two cases determined that payments of income received after the date of a motor accident are not to be taken into account despite the work done to produce that income having been done before the motor accident.
3. The claimant lodged submissions on 5 March 2026 noting:

(a) the insurer accepts there has been a significant change in his earning circumstances and that cl 4(2)(b) applies [3];

(b) the relevant period for the calculation of his PAWE in accordance with that section is his gross earnings received from the change in circumstances to the day before the accident [4];

(c) the purpose of the legislation is "to measure the earner's true post-change earnings and earning capacity following a significant change" [8];

(d) he worked continuously for Everything Data from 18 September 2024 until the accident [10], and

(e) he rendered two invoices for work done between 1 May and 19 June 2025 [12] which were paid on 25 July and 15 August 2025 [14] and which totalled $19,730.

1. The claimant took issue at [17]-[20] with the insurer's failure to include the money he was paid after the accident for the work he did before the accident. He distinguished the case of Ford noting it concerned cl 4(1) and not cl 4(2)(b).
2. Mr Turudic submits that his PAWE should be calculated at $3,133.57 based on the amount he was paid ($122,209.20) for the work done since he was engaged by Everything Data to the date of the accident.

1. Mr Turudic says that on 17 September 2024 he left his employment with Tea Too Pty Limited (Tea Too) as a data analytics manager. According to a document from Tea Too, Mr Turudic's salary was, at the time of his departure, $204,516 per annum or $3,933 per week or $103.50 per hour.
2. Mr Turudic says that on 18 September 2024 he commenced with Everything Data as a data architect and manager. He said he is engaged by Everything Data and is paid at a daily rate of $1,100 plus Goods and Services Tax (GST) based on invoices he rendered monthly.
3. At the preliminary conference Mr Turudic said that:

(a) he has a contract of employment with Everything Data;

(b) that Everything Data is his own company and he is a director of it;

(c) that Everything Data contracts with, and provides services to only one company. It provides data analytic services to that company and that company pays Everything Data at the rate of $1,100 plus GST per day for Mr Turudic's work, and

(d) Everything Data has a number of expenses incurred each year. Mr Turudic gave examples of fees paid to the Australian Security and Investment Commission and his Workers Compensation premiums. He might also have accountancy fees associated with preparing annual returns and taxation documents for the company and there are other expenses noted in tax documents. Mr Turudic estimated his expenses at between $3,000 and $5,000 per year.

1. Mr Turudic has provided copies of the tax invoices submitted by Everything Data (the recipient is not identified), bank statements for Everything Data Pty Limited care of Damien Turudic (which show payments made from a company E. E. Muir and Sons), Business Activity Statements and Communication from the Australian Tax Office in relation to Everything Data Pty Limited.

1. The date of 18 September 2024 is of course nine months before the motor accident and it is clear that Mr Turudic has changed employers (from Tea Too to Everything Data), has incorporated a company for which he works, and has an increase in what he is earning or is capable of earning. The agreement between the parties that there has been a significant change of earnings circumstances within the meaning of Schedule 1, cl 4(3) is therefore quite appropriate. That therefore means that the relevant clause to be applied when calculating Mr Turudic's statutory benefits is cl 4(2)(b) and that forms the basis of the submissions from both the claimant and Allianz.
2. At pages 6 and 7 of Allianz's internal review decision and at paragraph 5 of the insurer's submissions to the Commission, cl 4(2)(b) has been reproduced as follows:

"...if subclause (3) applies - the weekly average of the gross earnings the earner received as an earner, or could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred".

1. However, at page 9, paragraph 18 of Allianz's internal review and paragraph 12 of the submissions in the current proceedings, cl 4(2)(b) has been reproduced in different terms:

"...if subclause (3) applies - the weekly average of the gross earnings received by the earner as an earner during the period from when the change of circumstance referred to in that subclause occurred to immediately before the day of the motor accident".

1. There is a distinct and significant difference between the two versions.
2. It is the version of the legislation in paragraph 31 which has been applied by Allianz and its solicitors to the facts and circumstances of Mr Turudic's claim. Mr Turudic, who is not legally represented has also applied this version of the legislation to his situation.
3. The MAI Act was amended on 1 April 2023 and the wording of cl 4(2)(b) was amended. The words which appear in paragraph 30 above have been repealed and the words in paragraph 29 apply.
4. The current and correct version of cl 4(2)(b) identifies two methods of calculating PAWE:

(a) the weekly average of the gross earnings the earner received as an earner, during the 12 months after the change of circumstance, or

(b) the weekly average of the gross earnings the earner could reasonably have been expected to receive, during the 12 months after the change of circumstance referred to in the subclause occurred.

1. Neither party has addressed either of these concepts focussing instead on the repealed legislation which required consideration of received earnings only (not anticipated earnings) and for the period from the change of circumstances to the day before the accident (being 9 months and not 12).

What does the phrase "gross earnings the earner received as an earner" mean?

1. The insurer has relied on the cases of Ford and Suman in support of its argument that gross earnings received during a period means earnings or income paid in that period regardless of the fact work may have been done but not paid for before the accident.
2. The claimant is correct in his submissions in that both of these decisions concerned disputes about the application of cl 4(1) and his dispute with Allianz concerns cl 4(2)(b).
3. The insurer did not refer to the case of Kipkorir v QBE Insurance Australia Limited.[5] While both the Ford and Suman matters were decided by a single Merit Reviewer, Kipkorir is a decision of a Review Panel of three Merit Reviewers. That case concerned a dispute about the application of Schedule 1, cl 4(2)(a) and the phrase "gross earnings received by the earner as an earner." The Review Panel held at [40]:

"The Review Panel is satisfied it was the intention of the legislature to limit the calculation of the PAWE to gross earnings received to a period which ceases immediately before the day of the accident. The text is clear. If the intention had been to include payment for work undertaken during the relevant period but not received during the period ending immediately before the day of the accident the legislature could have readily done so."

1. The phrase "gross earnings received by the earner as an earner" in cl 4(1) and cl 4(2)(b) is not identical to the phrase in cl 4(2)(b) "gross earnings the earner received as an earner" but similar that it should, in my view, be interpreted consistently. The phrase is directly relevant to the first part of the method of calculation prescribed in cl 4(2)(b) and would be a relevant consideration in the determination of what Mr Turudic could reasonably have been expected to receive.

1. Mr Turudic's evidence is that he has a contract of employment with Everything Data, and that Everything Data does work only for one entity. Mr Turudic says he is the director of the company Everything Data and that whatever the company makes after expenses is his. Mr Turudic is not a self-employed sole trader, but he clearly works as an independent contractor within a corporate structure.
2. In Insurance Australia Limited t/as NRMA Insurance v Iskander,[6] a Merit Review Panel determined at [106] that, in the case of a business owner and operator that:

"... the income from personal exertion refers to the claimant's share of the proceeds of the business, not the entire proceeds of the business without any deductions."

1. That claimant's PAWE was then calculated on the earnings of the business less the expenses of that business. Mr Iskander was operating his business as a sole trader at the time of the accident not as a corporation.
2. In the case of Sidebottom v AAI Limited t/as AAMI[7] I had to consider the case of a claimant operating a business as a corporate entity and said at [133]:

"In my view, a self-employed person's loss of earnings should not differ or vary according to the type of structure adopted for their business. If two businesses earn the same 'income', the owner, operator and sole trader should receive the same statutory benefits as the owner, operator and director of the business. It is their share of the proceeds of the business that forms the basis of their statutory benefits and their share of the proceedings of the business should be interpreted in the same way. Therefore, adopting the reasoning from Iskander, Mr Sidebottom's income from his personal exertion refers to his share of the proceeds of the business less expenses of that business and not the entire proceeds of the business without any deductions."

1. Mr Turudic has said he earned $1,100 plus GST, however he clarified that this is what the company earned and that he earned something less than that (after expenses were deducted). It is not clear whether Allianz's decision about the claimant's PAWE has taken into account the corporate structure.

1. It is unfortunate that the insurer quoted and applied the repealed version of the relevant legislation in its internal review. This error was replicated in the insurer's submissions in the current proceedings. It is no surprise that Mr Turudic also quoted and applied the same incorrect version of the legislation.
2. Because of this error, I set aside the insurer's decision and pursuant to s 7.13(3)(d) I remit the matter to Allianz for reconsideration in accordance with the following directions:

(a) the insurer is to take into account the corporate structure of Everything Data, the contract of employment between the claimant and his company, and the gross earnings of Mr Turudic as opposed to the gross earnings of the company;

(b) the insurer is to apply the provisions of the current version of Schedule 1 cl 4(2)(b) to the facts and circumstances of Mr Turudic and determine "the weekly average of the gross earnings [the claimant] received, or could reasonably have been expected to receive, during the 12 months after [18 September 2024]";

(c) in considering Mr Turudic's gross earnings received in the 12 months after 18 September 2024, the case of Kipkorir should be applied and the insurer should consider what Mr Turudic was paid during those 12 months,

(d) in considering what Mr Turudic could reasonably have been expected to receive in the 12 months after 18 September 2024, the insurer should consider what Mr Turudic could have been expected to earn but for the accident, and

(e) the insurer is to issue a revised decision to the claimant on or before close of business on 20 March 2026.

1. Any new decision issued by the insurer will of course need to take effect from when it is made. The insurer will need to incorporate in its decision a clear statement as to any adjustment in the amount of weekly statutory benefits from when they first became payable.

[4] [2023] NSWPICMR 16 (Ford) and [2023] NSWPICMR 52 (Suman).

[5] [2024] NSWPICMRP 2 (Kipkorir)

[6] [2024] NSWPICMRP 5 (Iskander).

[7] [2025] NSWPICMR 16 (Sidebottom).