Aguwa v Wesley Community Services Ltd - [2023] NSWPIC 648

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Aguwa v Wesley Community Services Ltd [2023] NSWPIC 648
APPLICANT:	Izuchi Aguwa
RESPONDENT:	Wesley Community Services Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	1 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for psychological injuries; claim for weekly benefits compensation; issue arisen regarding the correctness of the respondent’s calculation of the applicant’s pre-injury average weekly earnings (PIAWE); consideration of applicant’s statement, employment and earnings documentation, medical reports and other treatment records, other factual material, as well as claim correspondence; consideration of whether the pay increase which the applicant received in July 2022 allowed the application of clause 8C of the Workers Compensation Regulation 2016 (the Regulation) to the calculation of her PIAWE, because it both amounted to a change of an ongoing nature to the applicant’s employment arrangement, as well as a financially material change to the earnings of the applicant; Cain v Tamworth Aboriginal Medical, Firth v HammondCare, Bhatia v Cameron Logistics Pty Limited, Project Blue Sky Inc v Australian Broadcasting Authority, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue, and Military Rehabilitation and Compensation Commission v May considered; Held – clause 8C of the Regulation applies so as to adjust the applicant’s ‘relevant earning period’ for the purpose of calculating her PIAWE; the adjusted earning period will be between her pay increase in July 2022 and the date when she ceased working on 4 March 2023; the applicant’s PIAWE will therefore be calculated at $1,799.67; awards in favour of the applicant pursuant to sections 36 and 37 of the Workers Compensation Act 1987 for the period from 4 March 2023 to date and on a continuing basis; the respondent will be given credit for all weekly compensation payments made already during this period.
DETERMINATIONS MADE:	The Commission determines: 1. Clause 8C of the Workers Compensation Regulation 2016 applies so as to adjust the applicant’s ‘relevant earning period’ for the purpose of calculating her pre-injury average weekly earnings (PIAWE). The adjusted earning period will be between her pay increase in July 2022 and the date when she ceased working on 4 March 2023. 2. As a result, the applicant’s PIAWE is calculated at $1,799.67. The Commission orders: 1. There will be an award in favour of the applicant in the amount of $1,709.69 per week pursuant to s 36(2) of the Workers Compensation Act 1987 (the 1987 Act), in relation to the period between 4 March 2023 and 2 June 2023. 2. There will be an award in favour of the applicant in the amount of $1,439.74 per week pursuant to s 37(3) of the 1987 Act, in relation to the period from 3 June 2023 to date and on a continuing basis. 3. Credit is to be given to the respondent in relation to all payments previously made to the applicant since 4 March 2023 pursuant to ss 36 and 37 of the 1987 Act. 4. The parties are given liberty to apply to the Commission…

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: [2023] NSWPIC 648
Decision Date: 1 December 2023

CaseChat Overview and Summary

In the case of Aguwa v Wesley Community Services Ltd, the applicant sought weekly benefits compensation for psychological injuries sustained in the course of her employment. The primary issue before the court was the correctness of the respondent's calculation of the applicant’s pre-injury average weekly earnings (PIAWE). The applicant contested the respondent's calculation, arguing it failed to consider a pay increase she received in July 2022, which she claimed warranted the application of clause 8C of the Workers Compensation Regulation 2016 to adjust her relevant earning period.

The court needed to determine whether the pay increase was a change of an ongoing nature to the applicant's employment arrangement and if it constituted a financially material change to her earnings. The court considered the applicant's statement, employment and earnings documentation, medical reports, treatment records, and other factual material, as well as correspondence related to the claim. The court referenced several cases, including Cain v Tamworth Aboriginal Medical, Firth v HammondCare, Bhatia v Cameron Logistics Pty Limited, Project Blue Sky Inc v Australian Broadcasting Authority, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue, and Military Rehabilitation and Compensation Commission v May, to assist in its analysis.

The court concluded that the pay increase in July 2022 constituted both a change of an ongoing nature to the applicant's employment arrangement and a financially material change to her earnings. Consequently, clause 8C of the Regulation applied, necessitating an adjustment to the applicant's relevant earning period for the calculation of her PIAWE. The adjusted period was set from the date of the pay increase in July 2022 until the applicant ceased working on 4 March 2023. As a result, the applicant’s PIAWE was calculated at $1,799.67. The court awarded the applicant weekly benefits compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987, from 4 March 2023 to the present and on a continuing basis, with the respondent to be credited for all weekly compensation payments already made during this period.

Orders