Cameron v Specialised Geo Services Pty Ltd - [2022] NSWPIC 614

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cameron v Specialised Geo Services Pty Ltd [2022] NSWPIC 614
APPLICANT:	Owen Cameron
RESPONDENT:	Specialised Geo Services Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	4 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and compensation pursuant to section 60 of the Workers Compensation Act 1987 for right shoulder surgery; liability for surgery conceded; quantification of the applicant’s entitlement to weekly compensation; where applicant had returned to work in full-time employment; where vocational assessment reports obtained by the insurer assessed the applicant as being suitable for higher paid roles; “current weekly earnings”; Held – the applicant’s “current weekly earnings” were his actual gross earnings; despite a strong academic ability and having relevant qualifications the applicant had not worked in his field of study during the 3 ½ years since graduating; the applicant had applied for higher paying roles but was unsuccessful; roles identified in the vocational assessment typically required experience and/or qualifications the applicant did not possess; award for weekly compensation at varying rates.
determinations made:	1. The respondent to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) from 18 August 2021 to 30 September 2021 at the rate of $701.92 per week; (b) from 1 October 2021 to 30 November 2021 at the rate of $728.58 per week; (c) from 1 December 2021 to 31 March 2022 at the rate of $744.82 per week; (d) from 1 April 2022 to 30 September 2022 at the rate of $779.92 per week, and (e) from 1 October 2022 to date and continuing at the rate of $803.62 per week. 2. The weekly rates identified above are to be reduced as follows: (a) by $90 for the week commencing 26 January 2022, and (b) by $330 for the week commencing 15 June 2022. 3. The respondent to have credit for payments already made during the periods above. 4. The parties have liberty to apply with respect to the Commission’s calculations within seven working days of receiving notification of this determination. 5. The claim for compensation pursuant to s 60 of the Workers Compensation Act 1987 is discontinued. NOTATION: 1. The respondent agrees on a voluntary basis to pay the costs of and incidental to the right arthroscopic subacromial decompression with coracoacromial ligament release and bursectomy proposed by Dr Wade Harper, in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Owen Cameron (the applicant), who is currently 29 years old, was employed by Specialised Geo Services Pty Ltd (the respondent) as a rope access geotechnician.
On 21 April 2020, the applicant sustained an injury to his right shoulder. Liability to pay compensation in respect of the injury was accepted by the respondent’s insurer.
On 27 May 2021, a decision was made by the insurer to reduce the applicant’s payments of weekly compensation on the basis that he had capacity to earn $1,826.92 per week in suitable employment.
Liability…

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: [2022] NSWPIC 614
Decision Date: 4 November 2022

CaseChat Overview and Summary

In the case of Cameron v Specialised Geo Services Pty Ltd, the applicant, Cameron, sought weekly benefits and compensation for shoulder surgery under section 60 of the Workers Compensation Act 1987. The liability for the surgery was conceded by the respondent, Specialised Geo Services Pty Ltd. The primary issue before the court was to determine the appropriate amount of weekly compensation to which Cameron was entitled. This involved assessing his "current weekly earnings," considering his employment status and the vocational assessments that suggested he could undertake higher paid roles.

The court had to consider various factors, including Cameron's actual gross earnings, his academic background, and his employment history. Despite having strong academic qualifications, Cameron had not secured employment in his field of study for the three and a half years since graduation. He had applied for higher paying positions but was unsuccessful. The vocational assessments conducted by the insurer identified roles that typically required experience or qualifications that Cameron did not possess. The court was tasked with balancing these considerations to arrive at an appropriate weekly compensation rate.

The court concluded that Cameron’s "current weekly earnings" were his actual gross earnings from his current employment. Given the vocational assessments and the roles he had applied for, the court determined that the weekly compensation should be awarded at varying rates. These rates reflected the difference between his actual earnings and what he could potentially earn in higher paid roles, taking into account the qualifications and experience typically required for such positions.

The final orders provided for the payment of weekly compensation to Cameron at the determined rates, reflecting the court’s assessment of his current earnings and potential earning capacity based on the vocational assessments and the roles he had unsuccessfully applied for.

Orders