Benten v William Campbell Foundation - [2021] NSWPIC 15

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…

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.

Continue reading Benten v William Campbell Foundation

Details

AGLC: Benten v William Campbell Foundation [2021] NSWPIC 15
Case: [2021] NSWPIC 15
Decision Date: 11 March 2021

CaseChat Overview and Summary

Benten, the plaintiff, brought an action against the William Campbell Foundation, the defendant, to determine the meaning of the term "employment" in Schedule 3 of the Workers Compensation Act 1987. The plaintiff was employed by the defendant but also ran her own business as a clinician one day a week. The insurer argued that the income from the plaintiff's business should not be included in the calculation of the Plaintiff's Incurred Average Weekly Earnings (PIAWE). The court was tasked with deciding whether the term "employment" in Schedule 3 was limited to a contract of service or if it also included income from self-employment.

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