Tag: PAWE

#42 – Weekly Benefits Not Allowed Where Post-Accident Earnings Exceed PAWE

Decision

Cameron v Allianz Australia Insurance Limited [2026] NSWPICMR 15

Sixty-Second-or-Less Read

An injured Claimant runs a short-term accommodation business prior to being injured in a motor accident. They earn more per week, on average, than their calculated pre-accident weekly earnings. They argue, however, that they would have earned even more post-accident, if it were not for their injuries.

Can the Claimant recover weekly benefits based on their potential increased earnings post-accident?

In Cameron v Allianz, a Merit Reviewer found that the Claimant was not entitled to weekly benefits because their post-accident earnings exceeded their PAWE. The Merit Reviewer found that the statutory formula in sections 3.6 and 3.7 did not permit any potential increase in the Claimant’s post-accident earnings to be taken into account.

Principles

✅ Claims for weekly benefits must be assessed pursuant to the formula in section 3.6 and  section 3.7 of the Motor Accident Injuries Act 2017 (MAIA).

✅ Sections 3.6 and 3.7 require a comparison between the Claimant’s pre-accident weekly earnings (PAWE) and their post-accident earnings or their post-accident capacity “whichever is the greater”.

✅ The words “whichever is the greater” in sections 3.36(3) and 3.7(2) are designed to address situations where the injured person has a residual capacity but fails to exercise that capacity.

✅ The formula in sections 3.6 and 3.7 does not allow a Claimant to claim weekly benefits on the basis that they would have earned income in excess of the PAWE had they not been injured.

Facts

The Claimant was injured in a motor accident on 18 September 2025. At the time of the accident, the Claimant operated a short-term accommodation management business. She alleged that her injuries caused a reduced capacity to carry out this work, which was productive of a loss of income. She claimed weekly benefits accordingly.

The Insurer calculated the Claimant’s pre-accident weekly earnings at $703.25 gross per week. The Claimant did not dispute this assessment.

The Insurer found, however, that the Claimant was not entitled to recover any weekly benefits because her average earnings post-accident exceeded her PAWE. That decision was confirmed on Internal Review.

The Claimant sought a merit review.

The Merit Reviewer’s Decision

The Merit Reviewer agreed with the Insurer’s assessment for the following reasons:

🟪 The claim for weekly benefits must be determined pursuant to the formula prescribed by section 3.6 and section 3.7  of MAIA.

🟪 Schedule 1, clause 3 of MAIA merely sets out the types of income, if not received, which may be considered “loss of earnings” and types of income that are excluded.

🟪 Schedule 1, clause 3 is not, of itself, a mechanism for calculating whether there has been a loss of earnings.

🟪 Pursuant to schedule 1, clause 3, the proceeds received from the Claimant’s business may be taken into account when calculating whether there has been any loss of earnings under sections 3.6 and 3.7.

🟪 The Claimant’s argument that she could have earned more, but for the accident, is not relevant to the calculation of weekly benefits because sections 3.6 and 3.7 only permit a comparison between the Claimant’s PAWE and her post-accident capacity.

🟪 The Claimant’s argument that her injuries caused an increase in expenses is also irrelevant in circumstances where her post-accident earnings exceed her PAWE (irrespective of her increased expenses).

🟪 The purpose of the words “whichever is the greater” in sections 3.36(3) and 3.7(2) is to address situations where the injured person has a residual capacity but fails to exercise that capacity.

    My Perspective

    The decision in Cameron is important because it confirms two aspects relevant to the calculation of weekly benefits.

    Firstly, the formula in sections 3.6 and 3.7, unlike a claim for damages, does not allow for an argument that the Claimant might have earned income greater than their PAWE had they not been injured. Based on the structure of Part 3.3 of MAIA, PAWE is a point in time calculation based on the various calculation methods in Schedule 1, clause 4. In most claims, the calculation is based strictly on historical earnings rather than potential future earnings. The exception is where the Claimant the accident has entered into an arrangement to commence new employment (self-employment) and the accident intervenes.

    Secondly, the words “whichever is the greater” in sections 3.36(3) and 3.7(2) is designed to take into account circumstances where the Claimant’s actual post-accident earnings are different from their post-accident capacity.

    If the Claimant’s post-accident capacity exceeds their actual post-accident earnings – for example, because they work 20 hours per week when they are certified fit to work 30 hours per week – then the dollar value of their post-accident capacity is compared to their PAWE to assess their weekly benefits.

    If, however, the Claimant’s actual post-accident earnings exceed their post-accident capacity – for example, because they manage to work 30 hours per week even though they are only certified fit to work 20 hours per week – then their actual earnings are compared to their PAWE in order to calculate their weekly benefits.

    PJH

    #32 – Claimant Fails to Discharge Onus of Proof that they were An Earner

    Decision

    Cisera v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMR 4

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    A Claimant alleges that he was “an earner” prior to his accident because he provided consulting services to his father’s business in the eight weeks before his accident occurred. The Insurer argues, however, that the Claimant was incapacitated for work before his accident and that the documentary evidence he relied upon was created post-accident to give the false impression that he was self-employed.

    Was the Claimant an earner before his accident?

    In Cisera v IAG, a Merit Reviewer agreed with the Insurer that the Claimant failed to discharge the onus of establishing, on the balance of probabilities, that he was self-employed in the eight-week period before his accident. There were, simply, too many inconsistencies.

    Principles

    ✅ A claimant is not entitled to weekly benefits, pursuant to Part 3.3 of the Motor Accidents Injuries Act 2017 (MAIA) unless they are “an earner”.

    ✅ Sch 1, cl 2(a)(i) of MAIA sets out the statutory definition of what constitutes “an earner”.

    ✅ The onus of proof is on the Claimant to establish that they are “an earner”.

    Facts

    The Insurer denied the Claimant’s application for weekly benefits on the grounds that he was not an “earner” within the meaning of Sch 1, cl 2(a)(i) of MAIA.

    The Claimant alleged that he was self-employed as a building consultant and that he was engaged to work in his father’s business for the eight-week period before his motor accident. He relied upon two invoices, this tax records for the relevant period, an affidavit sworn by his father and an eleven-page scope of works document.

    The Insurer argued that:

    The Claimant had been totally unfit for work for more than six years prior to the accident.

    🟪 At the time he was allegedly self-employed, the Claimant was awaiting further spinal implant surgery.

    🟪 The Claimant did not inform any of this doctors that he had returned to work.

    🟪 The Claimant’s contractor licence was inactive at the time he provided the alleged services.

    🟪 The invoices relied upon by the Claimant were prepared post-accident and lacked detail.

    🟪 The income the Claimant chose to declare to the ATO, post-accident, was part of a longstanding pattern of income support payments he received from his family.

    Following an Internal Review Certificate which affirmed the original decision, the Claimant lodged an Application for Merit Review.

    The Merit Reviewer’s Decision

    The Merit Reviewer affirmed the Insurer’s decision that the Claimant was not an earner, for the following reasons:

    🟪 The onus is on the Claimant to demonstrate that he meets the definition of “earner” in Sch 1, cl 2(a)(i) of MAIA.

    🟪 The inconsistencies in the evidence relied upon by the Claimant were such that his claims were not truthful, reliable or cogent and should be rejected out of hand.

    🟪 The evidence, therefore, failed to establish, on the balance of probabilities, that the Claimant was self-employed in the eight-week period before the accident.

    🟪 Indeed, the evidence established, on the balance of probabilities, that income was mispresented and that documents came into existence, post-accident, with the intention of giving credence to a misrepresentation that the Claimant was self-employed before the accident.

     Furthermore, the Merit Reviewer rejected the Claimant’s argument that a “promissory estoppel” arose because a Claims Manager had alleged acceptedly, during a telephone conversation, that the Claimant was self-employed. Given that the Insurer had formally asserted, in numerous documents, that the Claimant was not an earner, a reasonable person in the Claimant’s position would have understood that this was the Insurer’s correct position.

    Why This Case is Important

    The decision in Cisera provides a useful case study of how a Merit Reviewer will evaluate the evidence presented by the parties in order to assess whether a claimant has discharged the onus on them to establish that they are an earner.

    In this particular case, the Insurer highlighted the inconsistencies in the evidence presented by the Claimant and successfully argued that they had failed to discharge the onus.

    PJH

    #23 – Redundancy Payments and Early Termination Payments Should Not Be Included in PAWE

    Decision

    CPP v Youi Pty Limited [2025] NSWPICMR 27

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    A Claimant receives a redundancy payment and an early termination payment when their pre-accident role was made redundant. Can those payments be included when calculating the Claimant’s pre-accident weekly earnings?

    In CPP v Youi Pty Ltd, a Merit Reviewer determined that Payments made to compensate a former employee because their role no longer exists are not income gained in return for labour or services and are, therefore, not earnings. It followed that neither the redundancy payment nor the early termination payment could be included in the Claimant’s pre-accident weekly earnings.

    Principles

    ✅ The term “earnings” in clause 4(1) of Schedule 1 to the Motor Accident Injuries Act 2017 (MAIA) should be given its ordinary English meaning of “income gained in return for labour or services provided” by the claimant.

    ✅ Payments made to compensate a former employee because their role no longer exists – such as redundancy payments and/or early termination payments – are not income gained in return for labour or services.

    ✅ Furthermore, a redundancy payment and an early termination payment are not payments received “as an earner” because they are made when the Claimant’s employment has been terminated.

    Facts

    Following a motor accident, the Claimant sought to recover weekly benefits pursuant to Part 3.3 of MAIA.

    The Claimant and the Insurer, however, were not able to agree on the Claimant’s Pre-Accident Weekly Earnings (PAWE).

    The Claimant argued that both a redundancy payment and an employee termination payment should be included in the calculation of his PAWE. The Insurer disagreed and argued that these payments were not “earnings”.

    The dispute proceeded to the Personal Injury Commission for Merit Review.

    Relevant Definition

    Clause 4(1) of Schedule 1 to MAIA provides that:

    “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…“

    The Merit Reviewer’s Decision

    The Merit Reviewer agreed that the redundancy payment and the early termination payment should not be included in the calculation of the Claimant’s PAWE, for the following reasons:

    🟪 According to clause 4(2) of Schedule 1 to MAIA, the disputed payments may only be included in the Claimant’s PAWE if they are (a) “earnings” and (b) received by the Claimant as “an earner”.

    🟪 Whilst the term “earnings” are not defined by MAIA, the ordinary English meaning of “earnings” is “income gained in return for labour or services provided by an earner”.

    🟪 An early termination payment does not constitute “earnings” because it is not a payment made in return for labour or services which the Claimant provided. Rather, the early termination payment was made in lieu of providing notice of his termination.

    🟪 Similarly, a redundancy payment is designed to compensate an employee for the inconvenience and hardship that might arise from their role no longer being required.

    🟪 Furthermore, given that both the redundancy payment and the early termination payment were made when the Claimant’s employment was terminated, they were not payments made to the Claimant “as an earner” as required by the definition of PAWE in clause 4(1) of Schedule 1.

    For these reasons, the Merit Reviewer excluded the redundancy payment and the early termination payment when calculating the Claimant’s PAWE.

    Pete’s Perspective

    The decision in CPP is helpful because it further clarifies what is included and what is not included in the concept of “earnings”.

    The decision makes it clear that “earnings” is limited to income received by the Claimant in return for their labour or their services. It does not include other types of payments designed to compensate them for their role being made redundant or because they have not been provided with notice.

    The Merit Reviewer acknowledged that some one-off payments may still constitute “earnings” if the payment is in return for labour or services. For example, a one-off bonus would constitute “earnings” because the bonus is paid to reward performance.

    PJH