Agha v Jetstar Services Pty Limited - [2021] NSWPIC 207

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Agha v Jetstar Services Pty Limited [2021] NSWPIC 207
APPLICANT:	Walid Agha
RESPONDENT:	Jetstar Services Pty Limited
MEMBER:	John Isaksen
DATE OF DECISION:	24 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly payments of compensation for an accepted injury to the left foot but injury to left knee, left hip and lower back and/or a consequential condition affecting those body parts in dispute; order also sought for the respondent to meet the costs of left hip surgery; reference to Moon v Conmah Pty Ltd in consideration of the claims for consequential conditions; worker commences self-employed work as Uber driver and consideration of whether decisions in J and H Timbers v Nelson and Cage Developments Pty Ltd v Schubert no 1 remain applicable to a determination of current weekly earnings, which requires a determination of the greater amount of the worker’s actual earnings and the worker’s ability to earn in suitable employment; Held – award for the respondent for the claims of injury to the left knee, left hip and lower back, and consequential condition affecting the left knee; finding that the worker developed a consequential condition affecting his left hip and lower back as a result the injury to left foot; award of weekly payments for no current work capacity for one month and award of partial incapacity after consideration of the details of earnings provided by worker while working as an Uber driver; order for the respondent to meet payment of past treatment for the lower back and left hip and for the proposed surgery to the left hip.
DETERMINATIONS MADE:	1. An award for the respondent on the claims made by the applicant that he sustained an injury to the left hip or left knee or lumbar spine on 1 July 2019. 2. An award for the respondent on the claim made by the applicant that he has sustained a consequential condition affecting his left knee as a result of the injury on 1 July 2019. 3. The applicant has sustained a consequential condition affecting his left hip and lower back as a result of the injury on 1 July 2019. 4. The applicant had no current work capacity from 30 July 2020 to 31 August 2020. 5. The applicant has had a partial incapacity for work from 1 September 2020 to date and continuing. 6. The repair of the left labrum and bony decompression of the left femoral head neck junction proposed by Dr Randhawa is reasonably necessary as a result of the injury sustained by the applicant on 1 July 2019. 7. Treatment for the applicant’s left hip and lower back conditions are reasonably necessary as a result of the injury sustained by the applicant on 1 July 2019.
ORDERS MADE	1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $1,300.16 per week from 30 July 2020 to 31 August 2020 pursuant to section 37 (1) of the Workers Compensation Act 1987, and

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 207
Decision Date: 24 June 2021

CaseChat Overview and Summary

The case of Agha v Jetstar Services Pty Limited involved a claim for workers' compensation by the applicant, who was employed by the respondent, against the respondent for weekly payments of compensation related to an accepted injury to the left foot. The applicant also sought compensation for injuries to the left knee, left hip, and lower back, and for a consequential condition affecting those body parts. Additionally, the applicant requested that the respondent cover the costs of left hip surgery. The matter was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issues in the case centred on the extent of the injuries sustained by the applicant, whether the injuries to the left knee, left hip, and lower back, as well as the consequential condition, were compensable, and whether the decision in Moon v Conmah Pty Ltd should be applied in considering the claims. The court also needed to determine the applicant's current weekly earnings, considering his self-employment as an Uber driver, and whether the decisions in J and H Timbers v Nelson and Cage Developments Pty Ltd v Schubert no 1 remained relevant to the assessment of weekly earnings.

The tribunal found in favour of the applicant regarding the claims for injury to the left knee, left hip, and lower back, and for the consequential condition affecting the left knee. It was determined that the applicant had developed a consequential condition affecting his left hip and lower back as a result of the injury to his left foot. The tribunal awarded weekly payments for one month of no current work capacity and assessed partial incapacity based on the details of the applicant's earnings from his work as an Uber driver. The tribunal also ordered the respondent to pay for the applicant's past treatment for the lower back and left hip and for the proposed surgery to the left hip.

The tribunal ordered that Jetstar Services Pty Limited pay the applicant's past treatment costs for the lower back and left hip, as well as the costs for the proposed left hip surgery. Additionally, the tribunal awarded the applicant weekly compensation payments for one month of no current work capacity and a partial incapacity payment based on the applicant's earnings as an Uber driver.

Orders