CERTIFICATE OF DETERMINATION OF MERIT REVIEWER	
	
Citation:	Wei v Allianz Australia Insurance Limited [2024] NSWPICMR 12	
		
ClaimanT:	Xinyang Wei	
		
Insurer:	Allianz Australia Insurance Limited	
		
Merit Reviewer:	Belinda Cassidy	
		
DATE OF DECISION:	26 June 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about calculation of pre-accident weekly earnings (PAWE); claimant had period of 6.3 weeks of leave without pay during the 12 months before the accident and argued that schedule 1 clause 4(1) did not apply but that clause 4(2)(a) applies; claimant said he was not earning continuously for the 12 months before the accident because for the 6.3 week period he did not earn any money; Held – the focus of “earns continuously” in cl 4(4) is on the period of permanent employment not the period of payment; while he was not receiving income or pay during the 6.3 weeks he satisfied the definition of earns continuously for the whole 12 month period before the accident; Allianz Insurance Australia Limited v Shahmiri applied; clause 8E of the Workers Compensation Regulation 2016 and clause 8AE of the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 referred to.

Determinations made: 	CERTIFICATE OF DETERMINATION
Issued under Division 7.4 of the Motor Accident Injuries Act 2017
1.	The insurer’s decision of 16 April 2024, as restated in an internal review on 30 April 2024, concerning the claimant’s pre-accident weekly earnings is confirmed.

STATEMENT OF REASONS
INTRODUCTION
1.	Mr Xinyang (Leo) Wei was involved in a motor accident on 22 March 2024. He was travelling along Balaclava Road in Eastwood when a car travelling in the opposite direction crossed onto the incorrect side of the road colliding head on with the claimant’s vehicle.
2.	On or about 25 March 2024, Mr Wei lodged an application for statutory benefits with Allianz and Allianz has accepted that claim.
3.	A dispute has arisen in the claim about the amount the insurer has determined as the claimant’s pre-accident weekly earnings (PAWE). The dispute revolves around a period of 6.3 weeks of unpaid leave the claimant took during the 12 months before the date of the car accident. The claimant has referred that dispute to the Personal Injury Commission (the Commission) for determination.
4.	The President of the Commission (or his delegate) has allocated the proceedings to me for determination. 
5.	The proceedings were listed for a teleconference on 24 June 2024. The claimant attended representing himself, and Ms Grattin appeared on behalf of the insurer.
LEGISLATIVE FRAMEWORK
Statutory benefits for loss of earnings and earning capacity
6.	Mr Wei’s claim for statutory benefits and his entitlements are governed by the provisions in Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act). 
7.	Sections 3.6(1), 3.7(1) and 3.8(1) provides that an “earner” who is injured in a motor accident and suffers “a total or partial loss of” earnings or earning capacity as a result of their injuries “is entitled to weekly payments of statutory benefits.”
8.	Sections 3.6(2), 3.7(2) and 3.8(2) essentially provide for the calculation of statutory benefits by reference to the difference between the injured person’s pre-accident weekly earnings or earning capacity and their post-accident earnings or earning capacity subject to maximums (section 3.9) and minimums (section 3.10).
9.	Section 3.5(2) provides that the words and expressions defined in Schedule 1 of the Act apply to the interpretation of the provisions in Part 3.
Pre-accident weekly earnings
10.	Schedule 1, cl 4 of the MAI Act provides a definition of “pre-accident weekly earnings” 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.
(2) 	In the following cases, pre-accident weekly earnings, in relation to an earner who is injured as a result of a motor accident, means—
(a) 	if, on the day of the motor accident, the earner was earning continuously, but had not been earning continuously for at least 12 months - the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the day of the motor accident,
(a1) 	if the earner was employed or self-employed during a period or periods equal to at least 26 weeks during the first year of the pre-accident period, but was not obtaining earnings from any source at any other time during the pre-accident period - the average weekly gross earnings received by the earner as an earner during the first year of the pre-accident period,
(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,
(c) 	if the earner is an earner by reason of having entered into an arrangement with an employer or other person to undertake employment or to commence business as a self-employed person—the average weekly gross earnings that the earner could reasonably have been expected to earn, but for the injury, in employment under that arrangement.
(2A) The pre-accident period, in relation to a motor accident, is the period of 2 years immediately preceding the motor accident.
(3)	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.
Note—
Examples of a change of circumstances to which this subclause would apply include 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.
(4) 	For the purposes of this clause, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the day of the motor accident, was likely to continue for a period of at least 6 months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were being provided as at that day.”
Dispute resolution
11.	The dispute about “the amount of statutory benefits that is payable … under Division 3.3” is a declared Merit Review matter pursuant to Schedule 2, cl (1)(a) of the MAI Act. 
12.	Division 7.4 of the MAI Act provides for the resolution of declared Merit Review matters as follows:
(a)	the insurer must conduct an internal review before a merit review application can be made in accordance with s 7.11;
(b)	a claimant can apply to the President of the Commission for a review in accordance with s 7.12(1) and the President is to arrange for the application to be dealt with by a merit reviewer (s 7.12(2));
(c)	the claimant and insurer must provide information that the merit reviewer may reasonably require (s 7.12(5));
(d)	the merit reviewer determines an application by deciding the “correct and preferable decision” in relation to the factual material before the reviewer and “any applicable written or unwritten law.” (s 7.13(1)), and
(e)	the merit reviewer may decide to affirm, vary or set aside the insurer’s reviewable decision (s 7.13(3)). If the insurer’s decision is set aside the merit reviewer may substitute a decision or remit it to the insurer for reconsideration.
BACKGROUND
13.	The claimant’s Application for personal injury benefits was completed on 25 March 2024. Mr Wei discloses the following injuries:
(a)	concussion, and
(b)	“other possible injuries have not been checked yet and are to be confirmed.”
14.	He provides no details of the treatment he has received in section 5 of the form and no details of his employment and employer in sections 7 and 8 of the form. No amount of earnings is disclosed in the claim form.
15.	Mr Wei advised at the preliminary conference:
(a)	that he continued to have symptoms, but he was not having any treatment and he was consulting with his doctor;
(b)	he worked on the production line of Cochlear Limited at Macquarie Park making cochlear implants and hearing assistance devices, and
(c)	he was back at work full time and had only three weeks off work after the accident.
16.	On 16 April 2024, the insurer wrote to the claimant accepting liability for statutory benefits for the first 52 weeks after the accident. The insurer also advised the claimant in that letter that he was an “earner” within the meaning of the legislation and that his gross PAWE was determined to be $1,509.89. The reasons given included:
“You provided us payslips from your employer, Cochlear Ltd, for a 52 week period from 18/03/2023 to 15/03/2024. Your payslips show a total earnings of $78,514.07, which divided by 52 weeks gives a PAWE amount of: $1,509.89.”
17.	The claimant then asked the insurer to conduct an internal review of this decision in accordance with Division 7.3 of the MAI Act and the Motor Accident Guidelines (the Guidelines). 
18.	The insurer’s PAWE decision is dated 30 April 2024 and confirms the original decision stating that the claimant’s PAWE is $1,509.89. In that decision, the insurer:
(a)	accepts the claimant is an earner and was, at the time of the accident employed as an electronics assembler [9];
(b)	refers to the claimant’s application for “12 week’s leave made up of 25 days’ annual leave and 35 days’ leave without pay” and the reasons for that leave which was to return to China for “a few months [to] work out some important matters”;
(c)	says that Schedule 1, cl 4(2)(a) only applies when an earner was earning continuously on the day of the motor accident but had not been earning continuously for a period of at least 12 months [13]. The claimant’s period of unpaid leave is not a “break in earnings” and that he has earned continuously pursuant to cl 4(4) for the employer he had been working for over the last 10 years [15]; 
(d)	indicates at [17] that Schedule 1, cl 4(2)(a1) does not apply because the claimant was employed for the whole of the two year pre-accident period;
(e)	says that Schedule 1, cl 4(2)(b) does not apply because the claimant’s pay rise “reflects a company-wide salary adjustment” and not a “significant change” in employment in the 12 months before the accident [20], and
(f)	also says that Schedule 1, cl 4(2)(c) does not apply because there is no new arrangement for employment [22].
19.	As the legislation requires consideration of the payments “received” in the 52 weeks before the accident, the insurer listed at [24] the 26 fortnightly pay periods from the period ending 31 March 2023 to the period ending 15 March 2024 with the corresponding amounts of pay which totalled $78,514.07 (including three pay periods where no payments were made) and divided that amount by 52 to arrive at the sum of $1,509.89 [25].
SUBMISSIONS
Claimant’s submissions
20.	The claimant submitted a document with his application entitled “detailed description of the dispute.” 
21.	The claimant says [page 1, paragraph 1] that he could not work for three weeks after the accident because of his injuries and there is a dispute about the calculation of lost income.
22.	Mr Wei explains [page 1, paragraph 2] that he has been a full-time employee for the same firm for 13 years working 7.6 hours a day, five days a week. He says he is paid an hourly rate plus fixed shift loading and allowances and a fixed quarterly bonus. He is entitled to 20 days annual leave per year and that his “income is fixed and stable.”
23.	Mr Wei says [page 1, paragraph 3] he has provided all his payslips to Allianz for the 52 weeks before the accident and that he took 6.3 weeks of unpaid leave during those 52 weeks. He says this leave was taken at the end of the pandemic so that he could visit his family “and solve some issue.” He says it was a “one time event” and “doesn’t affect my full time / full hours earning capacity” and that he was not on leave immediately before the accident.
24.	The claimant says [page 1, paragraph 4] that his 6.3 weeks of unpaid leave should be excluded from the period for the purposes of calculating his PAWE. He says [page 2, paragraph 1] that the purpose of PAWE is to calculate a loss of income and that the MAI Act says that this leave should be excluded.
25.	Mr Wei says [page 2, paragraph 2] that his period of unpaid leave “is a discontinuity of earnings” and that cl 4(2)(a) applies. He says his PAWE should be calculated:
(a)	based on the period from the day after he returned from leave to the date of the accident, or
(b)	the total amount of his earnings in the 52 week period, divided by 45.7 weeks, or
(c)	the total he earned over a 52 week period based on 13 payslips before he went on leave without pay and the 13 payslips issued after he returned from leave when he was earning income.
26.	The claimant says [page 2, paragraph 3] that:
(a)	clause 4(1) does not apply because s 4(2)(a) applies;
(b)	clause 4(2)(a1) does not apply;
(c)	clause 4(2)(b) and 4(3) applies because he was awarded a 3.5% pay increase for the financial year ending 30 June 2024;
(d)	clause 4(2)(c) and 4(4) applies because if the car accident had not happened he would have worked for full hours for the three weeks of 23 March to 12 April 2024;
(e)	unpaid leave is supposed to be excluded, and
(f)	he does not accept the insurer’s calculations including the unpaid leave period “which has unfairly and unreasonably decreased my weekly payment and doesn’t [meet] the legislation.”
27.	Mr Wei refers [page 3, paragraph 1] to the workers compensation scheme and its determination of pre-injury average weekly earnings (PIAWE) and says PAWE under the motor accident legislation should be calculated in the same way. Mr Wei says that the “workers compensation regulations, it is just described more straight, any unpaid leave over 1 week is required to be excluded.”
28.	Finally, despite what Mr Wei is recorded to have said at paragraph 28(d) above, Mr Wei does not dispute the insurer’s interpretation of cl 4(2)(b) and 4(3) concerning his pay rise and no longer claims that the insurer should adjust his PAWE calculation to take into account the 3.5% pay rise he was awarded.
Insurer’s submissions
29.	The insurer confirms in its submissions at [1]-[5] that the dispute concerns the amount of Mr Wei’s PAWE calculated by the insurer at $1,509.88.
30.	The insurer confirms at [7] that the claimant is an earner.
31.	The insurer submits at [12] that cl 4(2)(a) does not apply as the claimant was earning continuously as defined in cl 4(4) and [13] that the overseas travel is not a break in earnings.
32.	The insurer says at [16] that the claimant has conceded the pay rise should not apply because it was a company-wide policy and not because of his own achievement or promotion.
CONSIDERATION OF THE ISSUES
Is any additional documentation or information necessary?
33.	The 16 April 2024 letter from Allianz to the claimant which contained the original PAWE decision refers to photographs, the police report, a certificate of fitness and specialist medical imaging none of which have been provided to me but which do not appear to be relevant to the matters in dispute. 
34.	At [27] of its internal review decision, the insurer listed three document types that it had considered, none of which have been provided. As these documents are said to be certificates of fitness, imaging reports and treatment requests and referrals, they do not appear relevant to the issue in dispute. The insurer also listed “email correspondence” which was considered. I do not have these emails but it does not appear necessary for me to have them.
35.	I noted at the preliminary conference that on Mr Wei’s first alternative basis his PAWE should be calculated at $1,718.03 ($78,514.07 divided by 45.7 weeks when he was being paid). On his second basis his PAWE would be $1,730.97 ($45,005.31 earned after he returned from leave divided by the 26 weeks he was paid before the accident).
36.	Having lost three week’s work as a result of his accident, Mr Wei’s PAWE gross earnings on these calculations would be either about $625 or $663 more than he has received. 
37.	At the preliminary conference, Mr Wei:
(a)	confirmed he did not press the adjustment of his PAWE by the 3.5% pay rise he received;
(b)	confirmed that the only dispute is whether his PAWE should be calculated by reference to cl 4(1) or cl 4(2)(a);
(c)	said his case was totally different to the case of Mr Shahmiri as Mr Shamiri had not worked at all for 23 weeks whereas Mr Wei had worked for the whole of the year minus his period of paid leave and unpaid leave and that at the time of the accident, Mr Wei “was in full time work at full capacity”, and
(d)	while his employment has continued for 13 years with Cochlear, his earnings have not continued and he has had 6.3 weeks of unpaid leave.
38.	Mr Wei gave the following examples which he said defied logic, caused an unfair result and should not be allowed to happen:
(a)	if someone took 10 months leave without pay in the 12 months before a car accident, they would have their PAWE determined by dividing what they earned in the two months by 52;
(b)	if there were three of his colleagues in the car with him at the time of the accident and all of them were injured, all of them had three weeks off work and all of them earned the same amount of money, he would be the only one paid less because of his period of unpaid leave;
(c)	if someone was unemployed and not working at all for the first 26 weeks of the 52 weeks before the accident but worked only for the 26 weeks before the accident, under cl 4(2)(c) they would have their PAWE calculated based on only those 26 weeks that they worked. Mr Wei said this would be particularly unfair because he had worked longer than this hypothetical person.
39.	I added to the last example the case of a person, unemployed the day before the accident, but who had an arrangement to commence work at Cochlear in the same role as Mr Wei the day after the accident and who could not work because of their injuries. That person was entitled under cl 4(2)(c) to statutory benefits at a rate higher than Mr Wei would have been paid regardless of them having done no work at all. 
40.	Mr Wei reiterated that logically he should be paid what he has lost and that he has not been continuously earning for the 52 weeks before the accident even though he has been in continuous employment.
41.	I was of the view that having heard from Mr Wei and considered the documents and submissions lodged by both parties I did not require any further documentation or information. I advised that parties at the preliminary conference that I would determine the matter on the information I had.
42.	On 25 June 2024 Mr Wei sent a message to me through the portal. He had now read the Shahmiri case and wished to make submissions about it. He says:
(a)	the case is very different from his because Mr Shahmiri was unemployed at the time of his accident and Mr Wei was employed at the time of his accident, and
(b)	schedule 1, clause 4(2)(a) did not apply to Mr Shahmiri because he was not earning continuously but does apply to Mr Wei because Mr Wei was not earning continuously.
43.	Mr Wei also made additional submissions about schedule 1, cl 4(4) and the phrase “he or she obtains earnings from permanent employment”. He says those words reference earnings not employment and while he was continuously permanently employed, there was a period when he did not obtain earnings from that permanent employment which means he was not continuously earning.
44.	Mr Wei says that the intention of parliament was to respect “actually and expected” earnings and regular earnings. He says that but for this accident he would have worked full time for three weeks and so his actual expected earnings is the average of his full time earning without any unpaid leave.
45.	Mr Wei, referencing the insurer’s argument in Shahmiri at [37] and [38] says that his “earning habit” is full time work without unpaid leave and that the unpaid leave he had was a one-time event and that the insurer “should also respect my habit and regular earnings and exclude the unpaid leave period.”
What law must I apply?
Can I consider the workers compensation legislation?
46.	Mr Wei argues that the insurer should not include the period he was not earning income and was on leave without pay, when calculating his PAWE.
47.	Mr Wei says that the workers compensation scheme permits the adjustment of PIAWE by excluding periods of unpaid leave and he cited Workers Compensation Regulation 2016 (Regulation 8E). He says the schemes are similar and logically they should be interpreted in the same way.
48.	I note that the workers compensation scheme is a different scheme to the motor accidents scheme. There is different legislation, there are different insurers and benefits provided to injured workers and persons injured in car accidents are not identical. 
49.	Mr Wei was injured in motor accident and not while at work therefore I cannot apply the workers compensation legislation or regulations. I am required to apply the legislative provisions in the MAI Act as they have been interpreted in and applied by the Courts.
What case law must I consider?
50.	In the case of Allianz Insurance Australia Limited v Shahmiri, Associate Justice Harrison determined a matter concerning a gentleman who was injured in an accident on 24 October 2020. He had worked from 23 October 2019 to 10 May 2020 (a period of 29 weeks) but had been unemployed in the 23 weeks after 10 May 2020 until the time of his accident (due to the pandemic). 
51.	The insurer had calculated the amount of Mr Shahmiri’s earnings received in the 12 months before the accident and then averaged that sum over the 52-week period before the accident to determine his PAWE at $462.73. The claimant in that case said the insurer should have averaged the total earnings over the 29 week period when he was working and not the 52 week period which would have resulted in a PAWE of $829.72. 
52.	Associate Justice Harrison said (emphasis added): 
[61] The wording of cl 2, in my opinion, makes it plain that once it is established that a claimant fits within the definition of an earner, they are to be considered an earner at all material times during the pre-accident period, even if they are not earning for the entirety of that period.
53.	As Mr Wei has correctly identified, Shahmiri was a case concerning the interpretation of cl 4(1) and not cl 4(2)(a). If cl 4(1) is applied in the current proceedings, Mr Wei remained as an “earner” for the whole of the 12 month period (for the purposes of the calculation of his PAWE) even though he was not actually earning any income (that could be included in the calculation) for some part of it.
54.	Associated Justice Harrison also said in Shahmiri (emphasis added):
[67] For completeness’ sake, regard should also be had to the other subclauses in sch 1 cl 4 of the MAIA. None of the subclauses 4(2)(a)-(c) suggest there should be an adjustment made to the period specified within those clauses to accommodate periods where the claimant was not earning.
55.	Her observations concerning the interpretation of cl 4(2)(a) may not be binding upon me, are a considered judicial opinion that I should consider.
Has Mr Wei been earning continuously for at least 12 months?
56.	The claimant says he had been employed by Cochlear Limited for 13 years and has continued in permanent employment with that company during the entirety of the 12-month period before the accident, and at all times since the accident. 
57.	Mr Wei says that cl 4(1) does not apply. He says this is because for a period of 6.3 weeks he was overseas on leave without pay. He says cl 4(2)(a) applies to his situation because “on the day of the motor accident, [he] was earning continuously, but had not been earning continuously for at least 12 month” because of the period of unpaid leave.
58.	Mr Wei says in his supplementary submissions that in respect of cl 4(4), which defines what earning continuously means, while he was in permanent employment when he was on leave, he did not obtain any earnings from that permanent employment for 6.3 weeks while he was away on unpaid leave. 
59.	Clause 4(4) of Schedule 1 says that an injured person meets the definition of “earns continuously” if the injured person:
(a)	obtains earnings from permanent employment, or
(b)	obtains earnings from a source that, on the day of the motor accident, was likely to continue for a period of at least 6 months to provide earnings on the same or similar basis to what was being earned on the day of the accident.
60.	At the time of the accident Mr Wei was in permanent employment obtaining earnings from that permanent employment. He therefore appears to meet the definition in the legislation of someone who was earning continuously at the time of the accident even thought he was not receiving any income for some part of that period.  For the 6.3 weeks he was on unpaid leave, can it be said he “had not been earning continuously for at least 12 months”?  
61.	As cl 4(4) defines what an earner who earns continuously means, I must apply that definition. Therefore, applying that meaning or definition to cl 4(2)(a) it reads:
“if, on the day of the motor accident, the earner [obtains earnings] from permanent employment, but had not [obtained earnings] from permanent employment for at least 12 months”. 
62.	When put that way, the focus becomes the 12 months of permanent employment, not the 6.3 weeks of no earnings.
63.	Mr Wei was obtaining earnings in permanent employment during the whole of the 12 month period and in my view satisfies the definition of “earning continuously” during that period. While Mr Wei’s habit of working was full time, without leave, the requirement of the legislation when calculating PAWE is to look at what has actually occurred not what usually occurs. 
64.	My decision is supported by considering what would have occurred had Mr Wei taken all of his 12 weeks leave at his half pay rate. Mr Wei would be unable to have all of the 12 weeks excluded because he as not being paid what he is usually paid. In that situation, Mr Wei’s PAWE would have been calculated on the averaging of all of his pay slips in the 52 week period. The fact that Mr Wei chose to take part of his leave as annual leave at the full rate of pay and another part as leave without pay unfortunately impacts his PAWE. Had Mr Wei had sufficient leave to have all of his leave taken at full pay then there would be no dispute
65.	I am not satisfied that at any time in the 12 months before the accident Mr Wei was not “earning continuously” within the meaning of cl 4(4). Mr Wei was certainly not receiving pay or income during the 6.3 week period of leave, but that is not what the legislation says. There is a definition of “earns continuously” in cl 4(4) which is not, in my view, dependent on the receipt of pay or income. The claimant was earning continuously for the purposes of the PAWE calculation even though he was not being paid continuously in that period.
66.	While GIO refers to a “break in earnings” and Mr Wei refers to “no continuity of earnings”. These are not concepts recognised or provided for in Schedule 1 or elsewhere in the legislation. As Associate Justice Harrison said there is no provision which enables cl 4(2)(a)-(c) to be adjusted for periods when a claimant is not earning. There is also no provision in the MAI Act or its Regulations that enables me to make an adjustment for periods of leave without pay such as cl 8E of the Workers Compensation Regulation 2016 or cl 8AE of the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020.
CONCLUSION
67.	I did explain to Mr Wei at the preliminary conference, that if he makes a claim for damages and is entitled to recover damages, then his claim for economic loss damages can be “topped up” to include all of his losses including the three weeks he could not work which might then be calculated at 100% of what he could have earned.
68.	I understand that Mr Wei considers the legislation in respect of his statutory benefits claim (which requires the inclusion of his unpaid period of leave when determining his PAWE) is unfair but as her Honour Associate Justice Harrison said in Shahmiri:
[70] Here we have an injured party who only worked for a 29-week period over the 12 months previous to the accident due to the effects of COVID-19 … but by application of the statute may have those 29 weeks of earnings averaged across the whole 12-month period to arrive at a determination of his ‘pre-accident weekly earnings’. This ostensibly produces an unfairness. However, one cannot construe an Act to accommodate a particular circumstance, no matter how unfair that circumstance may be.
69.	The examples Mr Wei gave during the preliminary conference, identify circumstances other than his own where the inability to take into account periods of unpaid leave might operate unfairly. The Parliament has created the scheme and passed the legislation that it has and which I must apply to Mr Wei’s claim. It should be noted that had Mr Wei been injured before 1 December 2017, he would not have been entitled to any statutory benefits at all. 
70.	In my view, the decision by Allianz that Mr Wei’s PAWE should be calculated by reference to the average of what earnings he received in the 12 months before the date of the accident, including the 6.3 weeks of leave without pay, is the correct and preferable decision.