Faiz v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Faiz v QBE Insurance (Australia) Limited [2025] NSWPICMR 29
CLAIMANT:	Rehan Ahmad Faiz
INSURER:	QBE Insurance (Australia) Limited
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	29 September 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about payment of weekly benefits under Division 3.3; pre-accident weekly earnings (PAWE); meaning of PAWE; Schedule 1, clause 4(1), clause 4(2)(b) and clause 4(3); significant change in earning circumstances; onus of proof; inconsistencies in evidence; incomplete evidence; outstanding documents; where evidence of earnings not reconcilable; GST; superannuation; business expenses; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about the amount of weekly payments of statutory benefits 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. 1. The insurer is to redetermine pre-accident weekly earnings (PAWE) based on additional information from the claimant, if requested to do so by the claimant. 2. If the claimant requests a redetermination of PAWE by the insurer the additional information to be provided by the claimant for that purpose is to include: (a) a complete copy of bank statement number 44 for account ending 942 (being the statement for the period 11 October 2024 to 11 April 2025); (b) a complete copy of bank statement number 16 for account ending 964 (being for the period 26 October 2024 to 26 November 2024); (c) a copy of the statement of income for the financial year ending 30 June 2025 from his ATO MyGov account in respect of Aeroklas earnings, and (d) a copy of his 2024/2025 financial year Uber tax summary. 3. In the meantime, the reviewable decision is affirmed.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between Rehan Ahmad Faiz (the claimant) and the insurer about the amount of the claimant’s pre-accident weekly earnings (PAWE) for the purpose of weekly payments of statutory benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 25 February 2025.
The claimant lodged an application for personal injury benefits.
On 13 June 2025 the insurer determined the claimant’s PAWE amount in the sum of $915.02.
On 17 June 2025 the claimant requested an internal review of the insurer’s decision dated
13 June 2025.
On 30 June 2025 the insurer issued their internal review decision in which the insurer varied PAWE to $1,730.

The claimant has requested a Merit Review of the insurer’s internal review decision dated
30 June 2025 (the Application).

BACKGROUND/PROCEDURAL HISTORY

The claimant contends he had the following sources of income in the 12 month period before the accident:
(a)    earnings under an Australian Business Number (ABN) from Uber driving;
(b)    earnings under the same ABN as a sole trader providing automotive/mechanical services, and
(c)    earnings as a mechanic employed by Aeroklas Asia Pacific Group (Aeroklas).
No evidence has been provided in respect of any earnings as a sole trader providing automotive/mechanical services at any material time.
Whilst further documents were provided by the claimant for the purpose of the insurer’s internal review, the insurer contends there is insufficient information from the claimant to enable any further review or assessment of PAWE.
A review of the documents indicated further documents ought to be available to the claimant relevant to assessment of PAWE and ought to be provided by the claimant. Accordingly, on
1 August 2025 interim directions were issued to the parties (the interim directions) which required the claimant to provide:
(a)    a complete copy of their 2023, 2024 and 2025 tax returns, including the supplementary sections (note: the current version of the 2024 tax return provided is incomplete as it does not include the supplementary section where business expenses are declared);
(b)    notices of assessment for 2023, 2024 and 2025;
(c)    ATO pre-filing statement for the financial year ending 30 June 2025, if the tax return has not yet been lodged;
(d)    the BAS for April to June 2025;
(e)    payslips issued by Aeroklas for the period from commencement of employment in or about August 2024 to 30 June 2025;
(f)    bank statements for the account into which Uber earnings, Aeroklas earnings and other income has been received for the period 25 February 2024 to
30 June 2025;
(g)    monthly Uber tax summaries for the months of February 2024 to June 2024 inclusive and January and February 2025;
(h)    Uber tax summary for FY2024/2025;
(i)    a summary of expenses incurred in deriving Uber income including telephone and motor vehicle expenses (rent/hire, petrol, registration, tolls, insurance, CTP, repairs) for the period 25 February 2024 to 24 February 2025, and
(j)    any further submissions and/or documents relied upon.
The claimant has not fully complied with the above directions as follows:
(a)    payslips provided under interim direction 1(e) are limited to payslips to
25 February 2025 despite other documents evidencing payment of wages by Aeroklas after this date;
(b)    bank statements for account ending 942 are limited to the period
8 December 2023 to 10 October 2024 such that all bank statements required by direction 1(f) have not been provided;
(c)    bank statements for account ending 964 for the period 26 October 2024 to
26 November 2024 have not been provided such that all bank statements required by direction 1(f) are not provided;
(d)    the claimant failed to provide the 2024/2025 financial year Uber tax summary, as required by direction 1(h), and
(e)    the claimant failed to provide any documents regarding business expenses, as required by direction 1(i) (the claimant clearly would have had business expenses in connection with his Uber driving income not limited to those listed in the Uber tax summaries).
The interim directions gave the parties an opportunity to request a teleconference before determination of the merit review application. Neither party requested a teleconference and accordingly, the matter proceeded to determination on the papers.

SUBMISSIONS

The claimant submits all necessary documents have been provided and that the documents establish his PAWE is $3,563. The applicant also seeks contributions to his superannuation account by the insurer in lieu of contributions that would have been made by his employer. The claimant submits he has been unable to work since the accident and continues to have no capacity for employment.
The claimant does not explain how he has calculated PAWE in the sum of $3,563.
The insurer submits the claimant’s PAWE assessment falls under Schedule 1, cl 4(2) of the MAI Act on the basis there was a significant change in earning circumstances on
26 August 2024, which triggers cl 4(3), when the claimant commenced employment with Aeroklas.
The insurer submits the claimant’s PAWE has been calculated pursuant to cl 4(2) based on gross earnings received from Aeroklas.
The insurer acknowledges the claimant received other income from Uber during this period but says there is insufficient information upon which to calculate the additional Uber earnings and accordingly, Uber earnings are not included.

REASONS
Legislation

The insurer accepts cl 4(3) of Schedule 1 of the MAI Act applies on the basis the claimant commenced full time employment with Aeroklas on 26 August 2025 and on this basis, began to earn more than he was earning before this change. Accordingly, the claimant’s PAWE falls for assessment under Schedule 1, cl 4(2)(b), which provides that the claimant’s PAWE is:
“…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… occurred”.
There does not appear to be any dispute that cl 4(2)(b) applies. There also does not appear to be any dispute about the amount of Aeroklas earnings for the purpose of cl 4(2)(b). The dispute is in relation to the amount of additional Uber earnings for inclusion in the PAWE calculation.

Consideration

The evidence establishes that from 26 August 2024 the claimant became entitled to earn gross weekly earnings, including allowances, from Aeroklas in the sum of $1,730. This is the basis of the insurer’s PAWE calculation.
The claimant submitted a schedule of earnings in which he contends as of 10 July 2025 he has received nil earnings from any source of employment or self-employment since the accident. Other documents, however, put the veracity of this statement into question. For example:
(a) 2025 tax return: an additional $9,612.45 in wages from Aeroklas is included which cannot be accounted for by accrued leave entitlements (according to the payslip year to date gross earnings as of 25 February 2025 were $45,851.54 yet by 30 June 2025 the claimant had earned $55,464 from Aeroklas indicating ongoing wages received after the accident), and
(b) bank records: the claimant has not provided bank statements for account 942 (the account into which Aeroklas wages were paid) for any period after
10 October 2024 (despite the following, unprovided, statement number 44 being relevant to PAWE). However, a comparison of the available statements for both accounts shows the claimant routinely transferred these wages from account 942 to account 964 with account 964 showing this continued post-accident that is, a net wages amount of $1,353 continued to be transferred from account 942 to 964 on a weekly basis for a period of time after the accident.
Whilst the above is relevant to the question as to whether there is any loss of earnings
post-accident for the purpose of payment of weekly benefits (a matter for the insurer to determine) the observations are also relevant to this Merit Review, as follows:
(a) clause 4(2)(b) requires consideration of earnings/expected earnings over the
12-month period from when the change occurred. In this case, the change occurred 26 August 2024 and accordingly, the 12-month period is 26 August 2024 to 25 August 2025, with the outstanding documents required by the directions falling within this period, and
(b) the conflict between the claimant’s statement in the schedule of earnings and the financial documents puts the veracity of the claimant’s evidence into question such that his contention his PAWE is $3,563 should be carefully scrutinised.
The insurer acknowledges there were additional Uber earnings pre-accident relevant to PAWE but says the information is incomplete to calculate the average weekly Uber earnings from 26 August 2024 to the day before the accident (24 February 2025).
If the claimant is able to demonstrate Uber earnings in the period 26 August 2024 to
24 February 2025 there should be an additional allowance included in PAWE based on the weekly average of Uber earnings over this 26-week period.
One issue is the absence of sufficient evidence of business expenses. It is clear the claimant incurred business expenses in addition to those summarised in the Uber summaries. However, the claimant has not provided the documents requested in the interim directions about this.
In my view, the following might be a reasonable work around for calculation of business expenses:
(a)    determining gross Uber payments exclusive of GST noting payments to the claimant are inclusive of GST;
(b)    taking the average expenses percentage of income based on the potential tax deductions (tolls, service fees etc) listed in the Uber tax summaries, which is an average of 42% (for example, gross earnings of $5,103 inclusive of GST are stated in the March 2024 Uber tax summary, which is $4,639 net of GST. This includes taxable expenses totalling $1936 which represents 41.7% of gross earnings net of GST);
(c)    taking the expenses percentage from the claimant’s 2024 tax return (being the nearest complete year for Uber driving), which is 65% indicating additional expenses not listed in the Uber tax summaries such as petrol, vehicle maintenance and repairs and other motor vehicle expenses equating to an additional 23% of business income, and
(d)    therefore allowing 65% of gross Uber earnings, excluding GST, for total business expenses based on (b) and (c) above.
The claimant does not indicate how he calculates PAWE in the sum of $3,563 but this would be an additional allowance of $1,833 per week for Uber earnings. In my view, this far exceeds any calculation available on the documents. Even if the GST component were not removed, making no allowance for business expenses and using the totals from monthly Uber tax summaries for August 2024 to February 2025 (that is, including payments received before 26 August 2024 and after 24 February 2025) the weekly average Uber earnings would be $1,189 bringing PAWE to $2,919, which is considerably less ($644) than the contended $3,563. The correct amount of course would be even lower, as the GST component must be removed, business expenses must be deducted and the August 2024 and February 2025 payments received before 26 August 2024 and after 24 February 2025 respectively must be excluded from PAWE.
Given the veracity of the claimant’s contentions about post-accident earnings is in question careful consideration must also be given to the claimant’s contentions about pre-accident earnings. On this basis and as PAWE only concerns earnings actually received by the claimant in the relevant period the bank records are likely the most accurate means of calculating gross Uber earnings with a reduction then applied for the GST component as the amounts received into the bank accounts are inclusive of GST (business expenses would then also need to be deducted).
The available (incomplete) bank statements evidence a total of $11,285.90 inclusive of GST received by the claimant into his bank accounts from Uber in the period 26 August 2024 to 24 February 2025. On this basis, the additional allowance for Uber earnings would be $138.10 per week calculated as follows:
(a)    $11,285.90 gross earnings received inclusive of GST equates to $10,259 exclusive of GST;
(b)    65% allowance for business expenses is $6,668.35, and
(c)    $10,259 gross earnings net of GST less $6,668.35 for business expenses results in net business earnings (before tax) in the sum of $3,590.65 which equates to a weekly average of $138.10 over the 26-week period from 26 August 2024 to
24 February 2025.
This would bring PAWE to $1,868.10 ($1,730 per week in respect of Aeroklas earnings plus $138.10 per week for Uber earnings).
The difficulty I have with this is that there are a number of inconsistencies in the available documents and there are clearly missing documents (required by the interim directions but not provided by the claimant) relevant to assessing Uber earnings under cl 4(2)(b). On the available documents, Uber payments into the claimant’s bank accounts do not reconcile with the monthly tax summaries and neither the (incomplete) bank statements nor the tax summaries are reconcilable with the tax returns. For example, the September 2024 tax summary records a gross payment to the claimant of $2,797.84 but payments in the bank statements in the same month total $2,201.08. There is a difference in amounts between the tax summaries and bank statements for every month.
It also appears from the bank statements that there may be a third bank account, not disclosed by the claimant, which may be relevant (perhaps the account for business expenses and/or additional Uber earnings).
Of note, the August 2024 and February 2025 tax summaries cannot be relied on independent of bank statements as they clearly include payments made before 26 August 2024 and after 24 February 2025 respectively.
By way of further illustration of inconsistencies, the 2025 tax return declares gross Uber earnings exclusive of GST in the sum of $34,981 which equates to $38,479 inclusive of GST. This differs to the total gross earnings inclusive of GST for the period 1 July 2024 to
28 February 2025 in the sum of $40,810.07 shown in the monthly Uber tax summaries. The tax return amount also differs from total payments received into the claimant’s bank accounts from 1 July 2024 to 24 February 2025 in the sum of $21,924.10 (noting the claimant contends no Uber earnings were received after the accident). The claimant failed to provide the required 2024/2025 financial year Uber tax summary, which may assist to clarify some of the inconsistencies.
I have given careful consideration as to whether the claimant’s PAWE should be determined on the available bank statements and adopting 65% of business income for business expenses, which would equate to PAWE in the sum of $1,868.10 based on the calculation set out above. However:
(a)    the bank statements are incomplete (the evidence establishes the claimant received Uber payments from time to time into both accounts 942 and 964 (and possibly a third account) and accordingly, he ought to provide complete statements for the whole of the period requested in the interim directions for both accounts and if there is a third account this should also be provided);
(b)    there are inconsistencies in the documents about what earnings the claimant did in fact receive from Uber in the period 26 August 2024 to 24 February 2025;
(c)    the claimant has not fully complied with the interim directions;
(d)    there is a question about the veracity of some of the claimant’s contentions such that careful consideration should be given to the evidence;
(e)    the request for additional documents made by the insurer and in the interim directions ought not be onerous to the claimant and there is no reasonable explanation as to why they have not been provided. The documents requested ought to be readily available to the claimant (for example, the claimant ought to have to hand missing statement number 16 for account ending 964, missing statement number 44 for account ending 942 and his 2024/2025 financial year Uber tax summary, noting the claimant has prepared his 2025 tax return), and
(f)    the claimant bears the onus of establishing his PAWE amount based on evidence that appears to the decision maker to be truthful, reliable and cogent.
Having regard to the above I have determined the most appropriate course is for the claimant to have an opportunity to provide the outstanding documents to the insurer if he wishes to have Uber earnings included in the PAWE calculation (indeed, there are presumably additional bank records not presently provided, which show receipt of additional Uber earnings). In the meantime, it is appropriate that the reviewable decision is affirmed that is, the claimant’s PAWE amount remains as $1,730 unless and until further documents are provided by the claimant to enable redetermination by the insurer.
Lastly, to the extent the claimant seeks superannuation contributions from the insurer superannuation contributions are not earnings received by the earner for the purpose of the MAI Act and are therefore excluded from PAWE. The insurer is not liable to make superannuation contributions on behalf of an injured person under the motor accident statutory benefits scheme.

CONCLUSION

The insurer is to redetermine PAWE based on additional information from the claimant, if requested to do so by the claimant.
If the claimant requests a redetermination of PAWE by the insurer the additional information to be provided by the claimant for that purpose is to include:
(a)    a complete copy of bank statement number 44 for account ending 942 (being the statement for the period 11 October 2024 to 11 April 2025);
(b)    a complete copy of bank statement number 16 for account ending 964 (being for the period 26 October 2024 to 26 November 2024);
(c)    a copy of the statement of income for the financial year ending 30 June 2025 from his ATO MyGov account in respect of Aeroklas earnings, and
(d)    a copy of his 2024/2025 financial year Uber tax summary.

In the meantime, the reviewable decision is affirmed.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;

· Motor Accident Guidelines, and
· the Regulation.

[2025] NSWPICMR 29

29 September 2025