Ozcan v QBE Insurance (Australia) Limited

In the matter of Ozcan v QBE Insurance (Australia) Limited, the claimant sought a merit review of the insurer's internal review decision regarding the determination of the Pre-Accident Weekly Earnings (PAWE) for the purposes of receiving statutory benefits under the Motor Accidents Injuries Act 2017. The claimant, who was a self-employed Uber delivery driver at the time of the accident, disputed the insurer’s calculation of his PAWE, arguing that the insurer had failed to include all income received, made an excessive allowance for business expenses, and incorrectly treated Goods and Services Tax (GST) as earnings. The insurer defended its decision by relying on a report from Procare Forensic Services and argued that the claimant was not registered for GST and therefore, GST should not be considered as earnings. The central issues before the court were whether the claimant's business expenses were accurately accounted for, if GST should be considered as earnings, and whether the claimant began earning continuously at a specific point in time.

The court focused on the interpretation of the statutory provisions concerning PAWE and earnings. It determined that earnings received after the accident, even if for work performed before the accident, should not be included in the PAWE calculation. The court also examined the nature of GST and concluded that since the claimant was not registered for GST, it should not be included as earnings. Additionally, the court found that the claimant had not provided sufficient evidence to demonstrate that he had earned continuously in the 12 months prior to the accident, thus the insurer's decision to apply Schedule 1, clause 4(1) rather than clause 4(2)(a) was upheld. The court noted that the claimant’s failure to provide English translations of Uber records, particularly those in Turkish, hindered a complete assessment of the claim.

The court concluded that the claimant's arguments regarding the inclusion of all income and the treatment of GST were not substantiated by the evidence presented. The court found that the insurer’s calculation of business expenses and the exclusion of post-accident earnings were consistent with the statutory requirements. Consequently, the court upheld the insurer’s determination that the claimant’s PAWE was $857.10 and remitted the matter back to the insurer for redetermination in light of the findings regarding the claimant’s continuous earnings.