Adam v Kosciuszko Thredbo Pty Ltd
[2021] NSWPIC 112
•10 May 2021
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Adam v Kosciuszko Thredbo Pty Ltd [2021] NSWPIC 112 APPLICANT: Josef Adam RESPONDENT: Kosciuszko Thredbo Pty Ltd MEMBER: Mr Brett Batchelor DATE OF DECISION: 10 May 2021 CATCHWORDS: WORKERS COMPENSATION- Claim for weekly benefits pursuant to section 38A of the 1987 Act and for a determination pursuant to section 53 of that Act; Held- the respondent’s submission that the failure of the applicant to supply particulars of post-injury earning or earning capacity to enable a determination of the weekly payments to which the applicant may be entitled rejected; the applicant’s claim, based on Hee v State Transit Authority of New South Wales [2019] NSWCA 175, that as he is a worker with highest needs and has current work capacity in accordance with the definition of that term in section 32A of the 1987 Act he is entitled to an award in the sum prescribed in section 38A(1), accepted; award in favour of the applicant at the rate prescribed in section 38A(1), as indexed; determination pursuant to section 53 of the 1987 Act that the incapacity for work resulting from the applicant’s injury likely to be permanent.
DETERMINATIONS MADE: 1. The applicant has partial incapacity for work as a result of injury on 29 July 2019.
2. The applicant has current work capacity in accordance with the definition of that term in s 32A of the Workers Compensation Act 1987 prior to the amendment of that definition by the Workers Compensation Legislation Amendment Act 2018.
3. The failure of the applicant to provide to the respondent particulars of his claim for weekly payments pursuant to s 38A of the Workers Compensation Act 1987 does not prevent an award for such payments being made in his favour.
4. As a worker with highest needs who has current work capacity, the applicant is entitled to an award for weekly payments at $788.32 per week, as indexed, from 20 December 2019 to date and continuing pursuant to s 38A of the Workers Compensation Act 1987.
5. The respondent is to pay the applicant $845 per week from 20 December 2019 to date and continuing pursuant to s 38A of the Workers Compensation Act 1987.
6. The incapacity for work resulting from the injury on 29 July 2019 is likely to be of a permanent nature.
STATEMENT OF REASONS
BACKGROUND
1.Josef Adam (the applicant/Mr Adam) commenced work with Kosciuszko Thredbo Pty Ltd (the respondent) as a full time ski instructor in about June 2010. In this role he was responsible for:
(a) providing ski and snowboarding lessons to groups and individuals;
(b) promoting self, co-worker and guest safety;
(c) providing guest service;
(d) providing general information about skiing and snowboarding, and
(e) providing personal ski and board equipment to guests.
2.On 29 July 2011, the applicant was in the course of providing a ski lesson to a single client on the slopes section of the Thredbo ski field when he was struck by a snowboarder. The helmet of the snowboarder crashed into the right side of the applicant’s head and neck. Mr Adam began to feel unwell a short time later and was conveyed to the medical centre.
3.The applicant was unwell for the following days and after an attendance at the Cooma Hospital on 31 July 2011, where he underwent a CT angiogram which revealed marked right vertebral artery dissection with no intracranial blood flow, was conveyed to Canberra Hospital on 1 August 2011. The applicant remained a patient at Canberra Hospital until 7 August 2011 where the right vertebral artery dissection was examined together with the closed head injury. Surgery was not possible due to the nature of the injury and Mr Adam was treated with anticoagulants.
4.The applicant returned to Germany in about September 2011. Since that time he has managed his condition and received treatment there.
5.In proceedings number 4789/19 on the former Workers Compensation Commission the applicant was referred to Approved Medical Specialists (since 1 March 2021 referred to as Medical Assessors) for assessment of whole person impairment (WPI) in respect of the following due to injury sustained on 29 July 2011:
(a) visual system;
(b) hearing loss/vestibular impairment, and
(c) cervical spine.[1]
[1] Certificate of Determination – Consent Orders dated 21 October 2019 and Amended Certificate of Determination – Consent Orders dated 15 January 2020 – Application to Resolve a Dispute (the Application) pp 11 and 12.
6.The applicant was examined by three Approved Medical Specialists on 27 and 28 November 2019. The Lead Assessor, Dr Michael Steiner, produced a Consolidated Medical Assessment Certificate (MAC),[2] which formed part of the Lead Assessor MAC dated 20 December 2020[3], containing the following assessments of WPI by himself and the two other assessors:
(a) Dr Michael Steiner – visual system – 13%;
(b) Dr Paul Niall – hearing loss – 10%;
(c) Dr Paul Niall – vestibular impairment – 10%, and
(d) Dr P Harvey-Sutton - cervical spine – 7%,
[2] Application p 22.
[3] Application p 18.
resulting in a total in accordance with the Combined Table values of 35% WPI.
7.On 23 June 2020 the respondent’s insurer, GIO, wrote to the applicant advising him that he had been deemed a worker with highest needs, and that the following entitlements applied to him:
(a) lifetime medical treatment for his compensable injury, and
(b) no time cap on weekly payments, except for the first anniversary of the Commonwealth retirement age.[4]
[4] Application p 13.
8.On 23 July 2020, the applicant’s solicitor wrote to the GIO making a claim for weekly benefits for the applicant from the date weekly benefits ceased (in or about September 2011) to date and continuing in accordance with the applicable rates.[5]
[5] Application p 14.
9.The Application commencing the current proceedings was lodged with the former Workers Compensation Commission on 27 January 2021. The respondent lodged a Reply on 17 February 2021. In the Application, the applicant claims weekly benefits from 20 December 2019, the date of the Lead Assessor MAC referred to in [6] above. Pre-injury average weekly earnings (PIAWE) are claimed to be $1,500. At a telephone conference on 24 February 2021, the following Directions were issued:
“1. The applicant is to lodge and serve by 24 March 2021 any further evidence on which he wishes to rely.
2. The respondent is to lodge and serve by 14 April 2021 any evidence in reply to the applicant’s further evidence on which it wishes to rely.
3. The matter is stood over for conciliation/arbitration via telephone conference at 2.00 pm on Tuesday 27 April 2021.
4. Counsel for the applicant and for the respondent are to lodge and serve by 20 April 2021 short (no more than three pages) written submissions on the applicant’s entitlement to weekly payments pursuant to s 38A of the Workers Compensation Act 1987.”
10.Written submissions have been received from the parties.
ISSUES FOR DETERMINATION
11.The parties agree that the following issues remain in dispute:
(a) Does the applicant have total or partial incapacity for work as a result of the accident in 29 July 2011 as required by s 33 of the Workers Compensation Act 1987 (the 1987 Act)?
(b) Does the applicant have “current work capacity” in accordance with the definition of that term in s 32A of the 1987 Act prior to the amendment of that definition by the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act)?
(c) Does the failure of the applicant to provide to the respondent particulars of his claim for weekly payments pursuant to s 38A of the 1987 Act prevent an award for such payments being made in his favour?
(d) Is the applicant entitled to an award of weekly payments in accordance with s 38A of the 1987 Act, having regard to the fact that the particulars referred to in (c) above have not been supplied?
(e) Has the applicant complied with s 53 of the 1987 Act in order to entitle him to receive weekly payment of compensation in view of the fact that he ceased to reside in Australia on his return to Germany in about September 2011?
12.In putting these matters in issue, the respondent concedes the 35% WPI suffered by the applicant and the impact that this permanent impairment has on his work capacity. It notes the applicant’s assertion at [9], [10] and[12] of his statement dated 5 August 2020[6] that he is unfit for any type of work.
[6] Application to Admit Late Documents (AALD) dated 25 March 2021 p 4.
PROCEDURE BEFORE THE COMMISSION
13.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
14.The parties attended a conciliation/arbitration on 27 April 2021 conducted via telephone conference. Mr B McManamey of counsel appeared for the applicant instructed by
Mr P Naddaf. Mr P Perry of counsel appeared for the respondent instructed by
Mr S Patterson. The applicant attended via telephone from Germany but elected not to remain in the telephone conference once the arbitration hearing commenced.
EVIDENCE
Documentary evidence
15.The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents;
(b) Reply and attached documents;
(c) AALD dated 25 March 2021 lodged by the applicant with the following attachments:
(i)supplementary statement of the applicant dated 5 August 2020, and
(ii)report of Professor Dr Eva Bartels (Dr Bartels) dated 8 March 2021;
(d) letter from the respondent’s solicitors to the applicant’s solicitors dated 16 April 2021;
(e) the applicant’s written submissions, undated, and
(f) the respondent’s written submissions dated 22 April 2021.
Oral evidence
16.There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
17.The oral submissions of the parties are recorded on the transcript (T) which can be obtained on request. These will not be repeated in full but are summarised hereunder together with the written submissions of the parties.
Applicant
18.The applicant relies upon the decision of the Court of Appeal in Hee v State Transit Authority of New South Wales[7] in which the court held that a worker who returns to work but is not able to perform their duties as fully as before the injury, is not able to return to their pre-injury employment and is a worker with “current work capacity”. A worker with highest needs who has current work capacity is entitled to the benefit of s 38A of the 1987 Act even if the amount of the weekly compensation determined in accordance with ss 36, 37 or 38 is zero.
[7] [2019] NSWCA 175 (Hee).
19.It follows that the applicant is entitled to payment in accordance with s 38A from 20 December 2019 if it can be shown that he is not capable of performing all of the duties of his pre-injury employment or is not able to perform those duties as fully as before the injury.
20.The applicant refers to the findings of White JA in Hee at [60], [72] and [73], and of Simpson AJA at [161] and [162].
21.In this case the applicant submits that he has significant impairment resulting from a significant loss of visual field which has been found to be 56%. He has continuing disability in his neck with restricted asymmetry of neck movements. His assessment of neck impairment included a 2% allowance for restriction of activities of daily living. He has hearing loss and a class 2 vestibular disorder.
22.The applicant notes his pre-injury employment was as a ski instructor. The injuries and their resulting impairments clearly restrict his ability to perform the duties of that position. It follows that he has “current work capacity” and is accordingly entitled to the benefit of s 38A from 20 December 2019.
23.The applicant submits that from the extent of the permanent impairment he will never be able to return to his full pre-injury duties. The incapacity resulting from the injury is likely to be permanent, and a certification should be made pursuant to s 53 of the 1987 Act.
24.In oral submissions the applicant submits that whether he is a worker with current work capacity or no current work capacity, he is entitled to the benefit of s 38A of the 1987 Act. The applicant relies on what is said by White JA at [89]-[91] of Hee, and the literal construction of s 38A found by his Honour that should be accepted. His Honour referred to the Second Reading speeches of the Workers Compensation Amendment Bill 2015 that introduced s 38A and found that the interpretation of the section advocated by the respondent employer in that case would require some re-writing of the section, which goes well beyond the legitimate scope of judicial interpretation.
25.The applicant submits that it does not matter what amount is determined as the amount of weekly payments of compensation is payable to him pursuant to ss 36 and 37 of the 1987 Act. If the amount determined is less that zero, s 35(2) states that the amount is to be treated as zero. If the amount determined pursuant to ss 36 and 37 is greater than the amount referred to in s 38A ($788.32 as indexed), the applicant abandons the surplus. The applicant submits that this is not an absurd result, and the effect of the section is a matter for Parliament.
26.The applicant notes that in Hee, the bus driver worker in that case was able to earn in excess of his pre-injury average weekly earnings (PIAWE), but not able to perform the full duties of his pre-injury employment as a bus driver. He was therefore entitled to the benefit of s 38A.
27.In respect of s 53 of the 1987 Act, the applicant submits that it is immaterial that the certification thereunder was not obtained in advance of his departure from Australia. This certification can be retrospective and that his incapacity for work resulting from the injury is likely to be of a permanent nature, certification under the section should be given.
28.The applicant notes what Roche DP said at [45] in Universal Consultancy Services v Datta [8] that it is not sufficient to establish that the medical condition or impairment suffered by a worker is permanent, but it must be one that has caused incapacity for work, though it may not result in an entitlement to an award of weekly compensation at the time because, at that time there is no economic loss. In that regard, the applicant submits that it is incapacity on the open labour market which must be considered having regard to the nature and extent of his injury.
[8] [2008][ NSWWCCPD 87 (Universal Consultancy Services).
29.The applicant therefore submits that, pursuant to s 53, he is entitled to be certified by the Commission that his incapacity for work resulting from his injury is likely to be of a permanent nature.
Respondent
30.The respondent submits that, whilst the applicant has been certified to have a significant impairment in the areas of the visual system, hearing loss, vestibular impairment and the cervical spine, this by no means constitutes evidence of any incapacity for employment. There is no evidence at all to the effect that the applicant might well have the capacity to earn well in excess of the earnings of a ski instructor, about which the applicant has provided no evidence. The respondent submits that the report of investigation and observation[9] raises the suggestion, whilst it does not amount to more than second hand reports, that the applicant has exercised the capacity to operate ski schools in Germany and Canada. This report highlights the need for the applicant to produce evidence of his activity during the period for which the claim for weekly benefits is made.
[9] Reply p 11 (the investigation report).
31.The respondent submits that the complete failure of the applicant to provide material notwithstanding the specific requests for material should disentitle him from proceeding with his claim for weekly benefits. Alternatively, if the applicant is to proceed with his claim, that claim should fail in the absence of evidence of incapacity. The respondent relies on the letter dated 16 April 2021 making yet a further request for the relevant material.[10]
[10] See [15(d)] above.
32.In respect of s 53 of the 1987 Act, the respondent draws attention to Universal Consultancy Services, and the notion incapacity for work referred to therein.[11]
[11] See [28] above.
33.The respondent submits that it has no means of testing the applicant’s assertion at [9] of his statement dated 12 March 2021 that:
“As a result of my ongoing symptoms and disabilities, I have been unable to work from 27 July 2011 to date and continuing.”
34.The respondent refers to the report of Dr Bartels dated 8 March 2021 and notes that the doctor appears to have treated the applicant since 2012, but the report does not give any indication as when the doctor last saw the applicant. The respondent has had no opportunity to obtain the records of Dr Bartels for this purpose, and this is all material that ought to have been provided to the insurer at the time that the claim was made, or at the very latest, at the time of the filing of the Application.
35.The respondent notes the report of Dr J G Bodel dated 4 January 2019 following his examination of the applicant on 29 November 2018[12], in which the doctor records:
“He has his own ski school in Bavaria…
He is trying to do some bookkeeping but is struggling with that. He is only able to work about 20 hours per week in modified duties.”
The respondent submits that this is clearly at odds with what the applicant says at [9] of his statement dated 5 August 2020. In its written submissions the respondent submits that it ought to have the entitlement to challenge, by way of cross-examination, the applicant’s statement that he has been unable to work since 27 July 2011. The respondent did not pursue any application to cross-examine the applicant when the applicant consented to the admission into evidence the letter from the respondent’s solicitors to the applicant’s solicitors dated 16 April 2021.
[12] Application p 125.
36.The respondent emphasises that there must be a “determination” both under s 38A of the 1987 Act as to the amount of weekly payments of compensation payable to the applicant, he being a worker with highest needs, and also a “determination” under s 53 that the incapacity for work resulting from the injury is likely to be permanent. Neither of these determinations can be made either by the insurer, or the Commission, without the material requested by the respondent.
37.The respondent notes that the applicant has not supplied any basis for the claimed PIAWE of $1,500, or any material to support this claim.
38.The respondent repeats its assertion that the applicant ought not be entitled to press a claim for weekly benefits without providing the material sought by the respondent, and that there ought to be an award for the respondent in respect of the claim for weekly benefits.
39.Alternatively, the respondent submits that the Application ought to be struck out by the Commission in light of the applicant’s sustained failure to provide relevant material appropriately sought by it. When pressed on the ground(s) on which the Application ought to be struck out, with reference to the grounds upon the Commission may dismiss proceedings before in referred to in s 354(7A) of Workplace Injury Management and Workers Compensation Act 1998, the respondent submits that it should be of the ground of “vexatiousness.”
Applicant in response
40.The applicant submits that there is a significant omission in the submissions of the respondent in that it has provided no scenario in which the information sought by it would allow there to be a conclusion other than that the applicant is entitled to a weekly sum of at least the amount prescribed in s 38A. The applicant submits that what must be determined is if he has current work capacity or no current work capacity, it does not matter which. The applicant notes that the respondent asserts in its “Employer’s Report of Injury” form[13] that the Award Rate per week and the actual current rate paid to the applicant was $920 per week. This is also apparent from the list of payments made to the applicant[14]. This information has come from the respondent’s records.
[13] Reply p 7.
[14] Application p 9.
41.The applicant submits that it is of no consequence as to what he is currently earning. That is not relevant to a determination to be made under s 38A, and that such a determination should be made. In the same way, the determination under s 53 should be made.
FINDINGS AND REASONS
Section 38A
42.The applicant submits that he is a worker with “current work capacity” in accordance with the meaning of that term in s 32A of the 1987 Act, prior to the amendment of that definition by the 2018 amending Act. The definition is as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his pre-injury employment but is able to return to work in suitable employment.”
The meaning of “no current work capacity” in s 32A prior to the amendment of that definition by the 2018 amending Act is as follows:
“no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
43.The applicant’s submission is that he is a worker with current work capacity in that because of the injuries sustained by him and their resulting impairments he is clearly restricted in his ability to perform the duties required of his pre-injury employment as a ski instructor but is able to return to work in suitable employment. Notwithstanding this submission, the applicant says that it is immaterial as to whether he has current work capacity or no current work capacity, because a person with no current work capacity cannot return to work either in his pre-injury employment or suitable employment.
44.The applicant further submits that the amount of his earnings in suitable employment is also immaterial, because of the combined effect of ss 35, 36 and 37 of the 1987 Act. Section 35 sets out the factors required to determine the rate of weekly payments for the purposes of the provisions of Subdivision 2 of Division 2 of Part 3 the 1987 Act. Division 2 deals with weekly compensation by way of income support. Subdivision 2, containing ss 33-42, deals with weekly compensation during total or partial incapacity.
45.Section 33 provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under the 1987 Act to the injured worker shall include a weekly payment during that incapacity.
46.The applicant relies on the finding of the Court of Appeal in Hee. Simpson AJA, who agreed with White JA that a literal interpretation of s 38A of the 1987 Act should be accepted, explained at [130]-[131] the operation of ss 33-38 as follows:
“130. Section 33 provides:
33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
‘Total or partial incapacity’ is not defined. However, it is well established that:
... the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.
Arnotts Snack Products Pty Ltd v Yakob[1985] HCA 2; (1985) 155 CLR 171 at 178; [1985] HCA 2; Sabanayagam v St George Bank Ltd [2016] NSWCA 145 at [131].
131. Sections 34-38 specify the basis on and the manner in which weekly payments of compensation are to be calculated, varying according to what are called the ‘first entitlement period’ (s 36, the first thirteen weeks), the ‘second entitlement period’ (s 37, weeks 14-130), and thereafter (s 38). It is s 37 that is presently relevant. Section 37 provides for alternative entitlements for three categories of injured workers in the second entitlement period:
·workers who have no current work capacity (subs (1));
·workers who have current (that is, diminished) work capacity and have returned to work for not less than 15 hours per week (subs (2));
·workers who have current (that is, diminished) work capacity and have returned to work for less than 15 hours per week or who have not returned to work (subs (3)).
Each subsection then sets out a formula by which entitlements are to be calculated.”
47.Her Honour noted at [133] that s 35(2) provides that:
“If the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount is to be treated as zero.”
48.At [170] her Honour explained the operation of s 35(2) as follows:
“The conundrum in this debate is the meaning of s 35(2) which is, to say the least, obscure. Section 35(2) does not provide that ‘zero’ is an ‘amount’. It deals with amounts that are less than zero which are then to be treated as ‘zero’. In fact, that is precisely what the application of the s 37(2) formula to Mr Hee’s pre- and post-injury earnings yields. By reason of s 35(2), Mr Hee’s entitlement is to be treated as ‘zero’. That is the amount payable under s 37(2), and the amount to be taken into account for s 38A purposes.”
49.The applicant relies on what White JA said at [60] in Hee, namely:
“I accept that if a worker returns to work for his or her employer, but is not able to perform all of his or her duties, or is not able to perform all of his or her duties as fully as he or she were able to do before the injury, then that worker is not able ‘to return to his or her pre-injury employment’ within the definitions of ‘current work capacity’ and ‘no current work capacity’ in s 32A. Such a construction is required to accommodate the terms of s 33. That section provides that in the case of partial incapacity for work resulting from an injury, a weekly payment of compensation during the incapacity is payable under the Act. Were it otherwise, a worker who returned to work with his or her employer on reduced hours, reduced duties and reduced wages would not be entitled to weekly payments under ss 36-38 because he or she could be said to be ‘able to return to his or her pre-injury employment’.”
50.As submitted by the applicant at [21]-[23] above, because of the significant impairment suffered by him he will never be able to return to his full pre-injury duties as a ski instructor. I accept that submission. The respondent in oral submissions accepted that was the case. The concession by the respondent was that it would make no submission that the applicant could perform all of the duties of an employed ski instructor carrying the disabilities that he does.[15]
[15] T p 10.25.
51.It follows that the applicant’s submission that he is a worker with current work capacity must also be accepted. He is not able to return to his pre-injury employment but is able to return to suitable employment.
52.Having regard to the wording of s 35(2), zero is an amount for the purposes of determining a worker’s entitlement to weekly payments pursuant to ss 36, 37 and 38 of the 1987 Act. That amount is less that $788.32 referred to in s 38A(1), and therefore on a literal interpretation of that subsection, as found necessary by White JA and Simpson AJA in Hee, a worker with no entitlement to weekly compensation under ss 36-38 would nevertheless be entitled to the weekly compensation provided for in s 38A.
53.Simpson AJA said at [171] of Hee in explanation of her finding at [170]:
“I appreciate that this result may well not be what the legislature intended. It is the consequence of what it enacted.”
54.The applicant also submits that it is not to the point as to what the applicant is earning or is able to earn in suitable employment. On the literal interpretation of s 38A(1) prescribed by White JA and Simpson AJA in Hee, if the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with Subdivision 2 of Division 2 of Part 3 of the 1987 Act results in an amount that is less than $788.32, the amount is to be treated as $788.32. On the other hand, if a worker with highest needs is in receipt of income in excess of $788.32 per week, he is nevertheless entitled to an award in that sum. White JA addressed this situation at [99] as follows:
“There is nothing in the text of s 38A that states that the right of a worker with highest needs to receive the amount payable under s 38A depends upon the worker’s earnings, although a ‘determination of the amount of weekly payments of the compensation payable to [the worker]’ requires a consideration of the worker’s earnings. To the extent that ss 36 and 37 are engaged so as to yield a determination that some weekly compensation payments are payable, s 38A has the effect described in the Explanatory Memorandum and the Second Reading speeches, although in a curious way. It is curious because a worker with highest needs who is entitled to benefits under ss 36 or 37 of more than $788.32 (as adjusted), reflecting a substantial reduction in earnings, is not entitled to benefits under s 38A, but a worker with highest needs whose post-injury earnings more closely approximates his or her pre-injury earnings is so entitled, at least if some amount of weekly compensation is payable. But that is the effect of the section.”
55.The respondent submits that since 2013 up until 16 April 2021 it has sought information from the applicant to enable it to determine on the applicant’s claim[16]. This submission is made against the background of the respondent’s submissions in [30] and [35] above that there was some, if not direct, evidence that the applicant was either earning or capable of earning an income following his return to Germany in about September 2011 after his injury on 29 July 2011.
[16] Reply pp 26-28.
56.The applicant submits that the respondent has not provided any possible scenario in which the information sought by the respondent could lead to any conclusion other than that he is entitled to a weekly payment of at least that prescribed by s 38A. It does not matter what the applicant’s earnings, or ability to earn, are. It is not relevant what the applicant’s PIAWE were, noting that the respondent did in fact put forward a figure of $920 per week, apparently obtained from its own records, as the actual current rate per week at which the applicant was paid[17]. The reason the respondent has not put forward any possible reason as to why the information sought by it is relevant is, according to the applicant, that there is none. The only relevant enquiry is whether the applicant has current work capacity or does not have current work capacity. If he has either of those, the applicant is entitled to an award in the amount prescribed by s 38A(1) of the 1987 Act.
[17] See [40] above.
57.I have found that the applicant has current work capacity. In the final analysis, the view of the majority in Hee must be accepted. Section 38A must be literally interpreted according to its terms.
58.Meagher JA addressed the construction of s 38A at [31]-[34] of his judgement. At [29] his Honour referred to an error he found in the decision of the President of the Workers Compensation Commission in Hee, namely in respect of a finding by the Senior Arbitrator, who heard the case at first instance, that findings concerning Mr Hee’s ability to return to his pre-injury employment were open and did not disclose error. His Honour said:
“This last conclusion involved error if the arbitrator did not make findings as to Mr Hee’s capacity to return to his pre-injury employment in the context of determining his ‘work capacity’. However in my view that error is not the subject of ground of appeal 2, which is directed in the worker’s case only to the making of a finding for the purposes of s 33. If that error is established, as appeared to be conceded in the appeal, the worker’s case must nevertheless fail in the face of the correct construction of s 38A requiring proof of an entitlement to a determination under s 37 and the absence of any claim in that case, or finding, that he had ‘current work capacity’ establishing such an entitlement.”
59.His Honour found at [33] that the correct construction of s 38A required a determination in accordance with ss 36, 37 and 38 as “the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week”. Section 35(1) defines the integers to be used in the calculations referred to in the operative sections, ss 36, 37 and 38.
60.His Honour concluded his judgement by noting that the appeal to the Court of Appeal was concerned only with the worker’s entitlement under s 38A construed as contended for by Mr Hee. He said that construction was correctly rejected by the President and that therefore the appeal must be dismissed.
61.The respondent’s submission in this case was in accordance with the judgement of Meagher JA in Hee, namely, that there had to be a determination of an entitlement to determination under ss 36 or 37, and that it required the particulars requested of the applicant, but not supplied, before it could make such a determination. However that was not the case put forward by the applicant. The applicant relied on the decision of the majority in Hee that if the applicant was a worker with highest needs, which he was, and had current work capacity, which he did, he was entitled to an award under s 38A(1) irrespective of what his earnings were.
62.When the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount in accordance with s 35(2) is to be treated as zero. That is “an amount” referred to in s 38A(1). The applicant submits that irrespective of any determination of a figure below or in excess of the amount referred to in s 38A(1) of $788.32, he is entitled to an award in that sum, indexed as referred to in s 38A(2).
63.My finding is that the applicant is entitled to an award in his favour from 20 December 2019 to date and continuing in accordance with s 38A(1) of the 1987 Act.
Section 53
64.The applicant submits that there should be a determination pursuant to s 53 of the 1987 Act that the incapacity for work resulting from the injury suffered by him is likely to be of a permanent nature. As an alternative to this, the applicant submits that there should be a determination of the award to which the applicant is entitled pursuant to s 38A, and the question as to whether there is sufficient evidence for the Commission to determine that incapacity for work resulting from the injury is likely to be of a permanent nature determined at a later date, and the subject of a further application to the Commission.
65.The degree of WPI as determined by the three Approved Medical Specialists (since 1 March 2021 with the commencement of the Personal In jury Commission Act 2020 referred to as Medical Assessors) are set out at [6] above. That evidence, together with the concession by the respondent and my finding to the same effect that the applicant will never be able to return to his full pre-employment duties as an employed ski instructor, is sufficient basis for a finding that the incapacity for work resulting from the injury suffered by the applicant on 29 July 2011 is likely to be of a permanent nature. This incapacity must be likely to be of a permanent nature though it may not result in an entitlement to an award of weekly compensation at the time because, at that time there is no economic loss (see Universal Consultancy Services). In this case, because of the operation of s 38A of the 1987 Act, the incapacity has resulted in an award of weekly compensation from 20 December 2019. It is of no consequence that compliance with the terms of s 53 of the 1987 Act occurs after the applicant ceased to reside in Australia[18].
[18] Slack v Crop Equities Pty Ltd (1995) 9 NSWLR 231.
SUMMARY
66.The applicant has partial incapacity for work as a result of injury on 29 July 2011.
67.The applicant has current work capacity in accordance with the definition of that term in s 32A of the 1987 Act prior to the amendment of that definition by the 2018 amending Act.
68.The failure of the applicant to provide to the respondent particulars of his claim for weekly payments pursuant to s 38A of the 1987 Act does not prevent an award for such payments being made in his favour.
69.As a worker with highest needs who has current work capacity, the applicant is entitled to an award for weekly payments at $788.32 per week, as indexed, from 20 December 2019 to date and continuing pursuant to s 38A of the 1987 Act.
70.The respondent is to pay the applicant $845 per week from 20 December 2019 to date and continuing pursuant to s 38A of the 1987 Act.
71.The incapacity for work resulting from the injury on 29 July 2011 is likely to be of a permanent nature.
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