| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Benten v William Campbell Foundation [2021] NSWPIC 15 |
| APPLICANT: | Natasha Benten |
| RESPONDENT: | William Campbell Foundation |
| MEMBER: | Mr William Dalley |
| DATE OF DECISION: | 11 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Preliminary point; meaning of “employment” in Schedule 3 to the 1987 Act; worker employed by the respondent but also deriving income from her own business as a clinician one day per week; insurer asserts that income from the worker’s business should not be included in calculation of the PIAWE; insurer submits “employment” in Schedule 3 is limited to contract of service/master and servant relationship; Held- dictionary definitions of “employment” include business or occupation; the term potentially therefore includes income from self-employment; context demonstrates that there is a mathematical relationship between weekly payments following injury and PIAWE; weekly payments are subject to reduction from earnings from all forms of personal exertion therefore inconsistent to calculate the PIAWE without inclusion of such earnings; conclusion is that “employment” in Schedule 3 includes self-employment for the purposes of calculation of the PIAWE; leave to apply with respect to outstanding issue of quantum. |
| DETERMINATIONS MADE: | 1. The Commission determines that the expression “employment” where used in Schedule 3 to the Workers Compensation Act 1987 includes personal exertion in a worker’s own business and the expression “pre-injury average weekly earnings” is to be interpreted accordingly. 2. Leave is granted to the parties to apply for a further telephone conference should the parties be unable to resolve the remaining issue of the quantum of the applicant’s pre-injury average weekly earnings. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Natasha Benten, suffered a psychological injury on 14 April 2020 in the course of her employment with the William Campbell Foundation (the respondent). At the time of her injury Ms Benten was employed by the respondent as a clinician working four days per week. She also derived income from her own practice as a clinician on one further day each week. As a result of her injury Ms Benten was not able to work.
The insurer accepted a claim for weekly payments, but assessed Ms Benten’s pre-injury average weekly earnings by reference only to her earnings from employment with the respondent. The insurer excluded earnings from Ms Benten’s business and issued a dispute notice stating:
“Based on the information provided by your legal representative, we are of the view that you are not a ‘worker’ when performing services in your private clinic. Accordingly, the income from the services cannot be included in the calculation of your PIAWE.
Having excluded your income from your private practice services, the calculation of your PIAWE he has been based only on your earnings from WCF.”
Ms Benten’s legal representatives filed an Application for Expedited Assessment seeking weekly benefits calculated on the basis of Ms Benten’s earnings from her employment with the respondent and her additional earnings from Ms Benten’s own practice as a clinician.
At the telephone conference I determined that the issue between the parties was not an appropriate issue…
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- AGLC
- Benten v William Campbell Foundation [2021] NSWPIC 15
- Case
- [2021] NSWPIC 15
- Decision Date
CaseChat Overview and Summary
The court considered the dictionary definitions of "employment," which include business or occupation, and concluded that the term potentially encompasses income from self-employment. The court also noted that the context of the legislation demonstrates a mathematical relationship between weekly payments following injury and PIAWE. As weekly payments are subject to reduction from earnings from all forms of personal exertion, it would be inconsistent to calculate the PIAWE without including such earnings. Therefore, the court determined that "employment" in Schedule 3 includes self-employment for the purposes of calculating the PIAWE.
In conclusion, the court found that the term "employment" in Schedule 3 of the Workers Compensation Act 1987 includes income from self-employment for the purpose of calculating the PIAWE. The insurer was ordered to include the plaintiff's income from her business in the calculation of the PIAWE, subject to the leave to apply with respect to the outstanding issue of quantum.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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