Adam v Kosciuszko Thredbo Pty Ltd - [2021] NSWPIC 112

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 112
Decision Date: 10 May 2021

CaseChat Overview and Summary

In the matter of Adam v Kosciuszko Thredbo Pty Ltd, the dispute involved a claim for weekly benefits and a determination under the Workers Compensation Act 1987 (NSW). The applicant, Adam, sought weekly benefits and a determination regarding the permanency of his incapacity for work due to an injury sustained during his employment. The respondent, Kosciuszko Thredbo Pty Ltd, contested the claim, arguing that Adam had not provided sufficient details about his post-injury earnings or earning capacity.

The primary legal issues in the case were whether Adam was entitled to weekly benefits under section 38A of the Workers Compensation Act 1987 and whether the incapacity resulting from his injury was likely to be permanent under section 53 of the same Act. The court had to assess whether Adam qualified as a worker with highest needs, as defined in section 32A of the Act, and if so, whether he was entitled to the prescribed weekly benefits.

The court determined that Adam's failure to supply particulars of his post-injury earnings or earning capacity did not negate his entitlement to weekly benefits. The court found that Adam met the criteria of a worker with highest needs, as outlined in Hee v State Transit Authority of New South Wales [2019] NSWCA 175, and thus was entitled to weekly benefits at the rate prescribed in section 38A(1). Additionally, the court concluded that Adam's incapacity for work was likely to be permanent. Therefore, the court granted the applicant's claim for weekly benefits and made a determination under section 53 of the Workers Compensation Act 1987 that his incapacity for work was likely to be permanent.

Orders