Chee v Sunny Building Construction Pty Ltd
[2022] NSWPIC 457
•19 August 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Chee v Sunny Building Construction Pty Ltd [2022] NSWPIC 457 |
| APPLICANT: | Kean Kok Chee |
| RESPONDENT: | Sunny Building Construction Pty Ltd |
| PRESIDENT’S DELEGATE: | Kathryn Camp |
| DATE OF DECISION: | 19 August 2022 |
CATCHWORDS: | Work capacity dispute; decision to reduce pre-average weekly earnings rate; clause 2 of Schedule 3 to the Workers Compensation Act 1987 (1987 Act); meaning of “earnings”; clause 6(1) of Schedule 3 to the 1987 Act; Held – the applicant failed to discharge onus of poof on the balance of probabilities; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd applied; evidence did not demonstrate applicant was earning a higher income for work performed in employment under clause 6 of Schedule 3 to the 1987 Act; interim payment direction declined. |
| ORDERS MADE: | The President determines: 1. The application for an interim payment direction is declined. |
STATEMENT OF REASONS
INTRODUCTION
This matter concerns a dispute relating to a Work Capacity Decision which determined that the worker’s pre-injury average weekly earnings (PIAWE) would be reduced. The applicant seeks to overturn that decision in place of an order for a higher PIAWE rate. For the reasons discussed below, the applicant’s claim for compensation is unsuccessful.
BACKGROUND
On 22 June 2021, the applicant, Kean Kok Chee, sustained an accepted injury to his left leg when he fell off a ladder in the course of his employment with the respondent, Sunny Building Construction Pty Ltd.
The respondent accepted the applicant’s injury and made payments of compensation, including weekly payments of compensation.
On 18 August 2021, iCare, the respondent’s insurer, issued a notice to the applicant that his weekly payments of compensation would change to $705.89 from 22 September 2021. The reason for this decision was based on a finding that the applicant’s entitlement to weekly compensation under the first entitlement period was coming to an end, and weekly compensation would be calculated under s 37 of the Workers Compensation Act 1987 (the 1987 Act). In that notice the applicant’s PIAWE was recorded as $882.36.
On 14 October 2021, iCare issued a review notice in which it reviewed the applicant’s PIAWE and determined that the applicant’s weekly payments would be reduced from 26 January 2021. iCare determined that the original PIAWE calculation was incorrect and should be reduced. iCare also determined that the relevant earning period for the purposes of calculating PIAWE was 13 April 2021 to 21 June 2021 (10 weeks) and that the applicant’s total earnings during this period was $8,400, based on payslips “on file”. Allowing for the periodic indexation of PIAWE, iCare calculated that the applicant’s PIAWE was $850.
In the review notice, iCare referred to “timesheets for periods prior to the relevant earning period” but stated that it was “not clear whom you were employed by in these records and there are no payslips to verify your employer or earnings over these days”. iCare also noted that it had requested relevant payslips from the respondent and that the respondent advised that the applicant commenced employment on 13 April 2021, and provided payslips from that period. Accordingly, iCare relied on the available payslips provided by the respondent for the period 13 April 2021 to 21 April 2021 to calculate the applicant’s PIAWE.
On 2 March 2022, iCare issued a further review notice again confirming its earlier PIAWE decision. iCare referred to WeChat messages between the applicant and the respondent regarding payments made on 2 July 2021 and 18 July 2021 but found that there was no indication that these payments were earnings. iCare also referred to the timesheets/worksheets that indicate that the applicant’s employment may have commenced with the respondent prior to the 13 April 2021, however considered this was not sufficient to establish that the relevant period began earlier or indicate what the earnings were for any earlier period.
On 4 July 2022, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly benefits where a work capacity decision regarding his PIAWE was in dispute.
On 19 July 2022, the respondent lodged a Reply to the Application.
On 20 July 2022, the respondent lodged an Application to Admit Late Documents (AALD –1).
On 22 July 2022, the applicant lodged an Application to Admit Late Documents (AALD – 2).
PROCEDURE BEFORE THE COMMISSION
On 25 July 2022, I convened a conference to resolve the dispute. The applicant attended the conference, with his solicitor Ms Caerus Ding of HY Solicitors. The respondent was represented by its solicitor Mr Danny Khoshaba of Bartier Perry.
The parties were unable to reach a resolution of the dispute and provided oral submissions during the conference. The parties were informed of my intention to determine the dispute following the conference.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours to bring the parties to the dispute to a settlement. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES
The parties agreed, during the conference, that the following issue remained in dispute:
(a) what is the applicant’s PIAWE?
There was no dispute as to the following matters:
(a) the only issue in dispute concerns the applicant’s PIAWE;
(b) that the President has jurisdiction to determine the dispute under s 297 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), as it concerns a decision to reduce the applicant’s weekly compensation on the basis of a decision to reduce the PIAWE rate;
(c) the applicant is in the second entitlement period, under s 37 of the 1987 Act, and
(d) that the applicant sought to proceed on the basis of the evidence before the Commission.
The parties did not object to the admission of the AALD – 1 or AALD – 2. During the conference, leave was granted to the parties to introduce the evidence attached to their respective AALD into the proceedings.
EVIDENCE
The following documents were in evidence before me and have been considered in determining this dispute:
(a) Application, and attached documents;
(b) Reply, and attached documents;
(c) AALD – 1, and attached documents, and
(d) AALD – 2, and attached documents.
Applicant’s statement
In evidence is a statement prepared by the applicant, dated 20 May 2022. The applicant states that around January 2021 he started work as a construction worker for the respondent on a full-time basis. The applicant asserts that he worked “an average of 57 hours per week” and was paid $26 per hour. The applicant also asserts that he was “paid cash in hand” and that his weekly earnings were “approximately $1482”. The applicant refers to a copy of the WeChat record between him and the respondent.
Mr Chung-Kai Chiang statement
In evidence is a statement prepared by Mr Chung-Kai Chiang, dated 26 May 2022. Mr Chiang states that he and the applicant started working for the respondent around January 2021. Mr Chiang also states that his hours of work were identical to the applicant, working an “average of 57 hours per week, 6 days per week”. Mr Chiang states that they “worked from 7 am to 5 pm from Monday to Friday and 7 am to 2 pm every Saturday”.
Mr Chiang adds that he was paid “$28 per hour cash in hand” and the applicant “was paid $26 per hour” cash in hand. He adds that respondent employer “Mr Chen” would give fortnightly cash payments, usually every other Tuesday. Mr Chiang further states that the “entire team would receive payments in envelopes at the same time”.
Screenshots
In evidence is a series of screenshots of WeChat conversations between what appears to be the applicant and a “Cecilia” between 29 June 2021 to 2 July 2021, which have been translated from “Chinese to the English language”. These screenshots record a series of conversations from 29 June 2021 where the applicant refers to “Cecilia” as “boss” and a request by the applicant for wages.
On 29 June 2021, Cecilia sends the applicant a screenshot of an Osko payment sent to “Chee Kean Kok” on 29 June 2021 in the sum total of $1,360. However, on 2 July 2021 the applicant advises Cecilia that she “missed a number” (presumably an account number) and seeks the money that day. On that same day, Cecilia sends a message to the applicant stating that the payment had been made into the applicant’s account and provides a screenshot of the bank transfer receipt in the sum of $1,360.
On 18 July 2021, the applicant sends a further message to Cecilia stating that “you haven’t given me my salary yet”. Cecilia provides a further screenshot to the applicant of an Osko bank transfer receipt in the sum of $3,020.
Other – Osko payment
In evidence is a screenshot of an Osko payment in the amount of $7,292.40 to the applicant on 7 October 2021. It is unclear who paid the amount to the applicant.
Timesheets
In evidence are documents described as timesheets, which have been translated from “Chinese to the English language”. These timesheet records are not in numerical order and appear to cover a period from early February 2021 to July 2021. At the header of some of the timesheets it is recorded “sunny building construction”. These records span approximately 80 pages of the supporting material attached to the Application.
Payslips
In evidence are also several payslips for the period of 13 April 2021 to 21 June 2021, indicating the applicant’s ordinary hours were 56 per fortnight, rate of pay was $30 per hour, and his fortnightly gross payment was $1,462 in “cash”.
SUBMISSIONS
The applicant and respondent provided oral submissions during the telephone conference which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.
Applicant’s submissions
The applicant submits that “based on the evidence we provide in our application” he should receive weekly compensation in the sum of “$1,482 gross weekly”.
The applicant also submits that the applicant commenced working for the respondent from January 2021, and relies on his statement evidence and the evidence of Mr Chiang. The applicant contends that he worked 50 hours per week and was paid $26 per hour in cash from the respondent.
The applicant refers to WeChat screenshots in evidence. The applicant submits that this shows a “transaction from his employer to support his weekly benefits” claim.
The applicant’s submissions were, otherwise, not further developed.
Respondent’s submissions
The respondent refers to the WeChat screenshots and submits that evidence should not be accepted, and, if so, very little weight should be given to it as financial evidence to support the applicant’s application. The respondent asserts that it is very difficult to decipher this evidence. It is difficult to identify what they are, who sent the WeChat messages and who seems to have deposited money into an account. The messages are in Chinese. The deposit of money does not appear to relate to the 52 weeks prior to the date of injury, for the purposes of determining the “relevant period” and assessing a higher PIAWE than the respondent has already determined.
The respondent also refers to the lay statement evidence, which it contends is very brief. The respondent submits that it is unclear how these statements support any PIAWE application. Firstly, the respondent notes that there is reference to working on a full-time basis and then on average 57 hours per week, which is well in excess of full-time work. Secondly, the lay statements should not be given any weight. While the statements record that the applicant was being paid cash, the respondent contends that the applicant was “paid on the books” and there is evidence of payslips. If the applicant contends that there is other material in excess of the payslips, which would suggest cash payments or otherwise in excess of the PIAWE calculation, the respondent submits that there is no evidence. The respondent further submits that the WeChat screenshots should not be given any weight, in this regard.
The respondent contends that the applicant has not provided any submissions on what the relevant period would be and what the amounts he would be earning in that period, other than reference to a screenshot.
The respondent contends that the applicant has failed to discharge its onus of establishing that the PIAWE rate is or should be higher than that determined. The respondent seeks that the work capacity review decision of 2 March 2022 is maintained.
Applicant’s submissions in reply
The applicant refers to the timesheet entries in evidence, from February 2021, to support the fact that he worked 50 hours per week. The applicant then referred to the lay statement evidence that provides the applicant received $26 per hour, and concluded that the applicant’s PIAWE exceeds that determined by iCare.
Respondent’s further submissions in response
As the applicant raised a new issue in submissions in response, the respondent was provided with an opportunity of reply. The respondent disputes that the timesheets demonstrate what the applicant was working and earning. The respondent contends that the evidence would not persuade a finding in favour of the applicant.
The respondent further submits that the screenshots suggest that the applicant was receiving some cash payments in circumstances where he alleges he was unfit for employment. The respondent asserts that this goes to the applicant’s credit.
Applicant’s further submissions in response
The applicant declined my invitation to provide submissions in response.
RELEVANT LAW
The present dispute concerns a dispute about the applicant’s PIAWE. Section 43(1)(d) of the 1987 Act provides that a decision of the insurer about the amount of an injured worker’s PIAWE is a “work capacity decision”.
As the matter concerns a work capacity decision, the dispute is governed by the Commission’s expedited assessment procedure under Pt 5 of the 1998 Act. In particular, s 297(1) of the 1998 Act provides that an interim payment direction may be issued for the payment of weekly payments of compensation. Section 297(1A) provides that the period for which an interim payment direction can be directed under s 298 of the 1998 Act does not apply to a work capacity decision to discontinue or reduce weekly payments of compensation.
As iCare has issued a work capacity decision that reduces the applicant’s PIAWE and therefore reduces the applicant’s entitlement to weekly payments of compensation, there is no restriction on the period in which weekly payments may be directed under s 297 of the 1998 Act.[1]
[1] Workplace Injury Management and Workers Compensation Act 1998, ss 297(1A), 298.
PIAWE
PIAWE is defined under cl 2(1) of Sch 3 to the 1987 Act. It provides:
“‘Pre-injury average weekly earnings’, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.”
Clause 2(2) of Sch 3 provides that in calculating pre-injury earnings received by a worker no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of injury (the relevant earning period).
Clause 6(1) of Sch 3 to the 1987 Act provides that “earnings” received by a worker means “the amount that is the income of the worker received by the worker for work performed in any employment during the week”. Clause 6(4) of Sch 3 to the 1987 Act provides that the Workers Compensation Guidelines may make provision for or with respect to the matters to be taken into account in determining whether a benefit has been provided to a worker or whether the worker is entitled to use of a benefit. In determining whether a benefit has been provided and whether the worker is entitled to use of the benefit, the Workers Compensation Guidelines provide that:
“An insurer is to determine if a benefit has been provided to a worker by requiring the employer to provide the tax reporting records kept by the employer about that worker.”[2]
[2] Workers Compensation Guidelines, dated 1 March 2021, 10.2.
To calculate a worker’s PIAWE, the worker’s gross earnings are divided by the relevant earning period (weeks). Gross earnings (or income) may include:
a. wages, including any paid leave and loadings;
b. shift, overtime and other allowances paid, and
c. commissions and piece rates.[3]
[3] Workers Compensation Claims Management Guide, dated 13 September 2019 (edited 1 March 2021).
DISCUSSION
The applicant seeks to dispute iCare’s PIAWE determination. For the reasons that follow, I am not satisfied that the applicant has discharged his onus of proof to establish that iCare’s PIAWE determination was wrong.
The applicant bears the onus of establishing on the balance of probabilities that iCare’s PIAWE calculation was in error. In order to prove this, the applicant must demonstrate that either iCare made a material error in the calculation of his PIAWE or failed to have regard to evidence demonstrating that the applicant was in receipt of earnings from the respondent over a period that exceeds that found by iCare. In Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[4], Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”[5]
[4] [2008] NSWCA 246 (Nguyen).
[5] Nguyen, [44] per McDougall J (McColl and Bell JJA agreeing).
The applicant has not identified a material error in iCare’s method used to calculate his PIAWE. The applicant merely relies on the WeChat screenshots, the lay statement evidence and timesheets to support his application that the PIAWE rate should be higher than that calculated by iCare.
The WeChat screenshots identify a series of exchanges between the applicant and what purports to be an employee of the respondent and the applicant’s “Boss”. Contained within those WeChat screenshots are Osko payments allegedly to the applicant on 2 July 2021 in the sum of $1,360 and on 18 July 2021 in the sum of $3,020. In evidence is another screenshot of an Osko payment to the applicant in the sum of $7,292.40 on 7 October 2021. However, these screenshots are of little probative value as financial evidence of “earnings” for the following reasons:
a. it does not identify who made the payment;
b. it does not identify that the payment was made by the respondent or a representative of the respondent;
c. it does not identify whether the payment was received by the applicant;
d. it does not demonstrate that the payment was made by the respondent for the purposes of “earnings” received for work performed within the meaning cl 6(1) to Sch 3 of the 1987 Act;
e. it does not identify the period of work for which the money was allegedly paid;
f. it does not demonstrate that the money allegedly paid is for work performed before or after the “relevant period” or the 52 weeks ending immediately before the date of injury under cl 2(1) of Sch 3 to the 1987 Act, and
g. the payments allegedly made post-date the applicant’s date of injury, for the purposes of determining the “relevant” period and assessing PIAWE.
The applicant’s statement dated 20 May 2022 and Mr Chiang’s statement dated
26 May 2022, are relevant for three reasons. Firstly, the statements provide that the applicant earned $26 per hour in cash for work for the respondent. Secondly, that the applicant worked on average 57 hours per week, 6 days per week. Thirdly, the statements provide that the applicant commenced work for the respondent around January 2021. However, this evidence is contradicted by the respondent’s payslips and the timesheets and must be treated with caution. I am unable to reconcile this contradicting evidence in favour of the applicant, in the absence of any corroborating evidence or other evidence in support. For the following reasons this evidence is also of little probative value:a. the lay evidence is contradicted by the payslips produced by the respondent, which identify the applicant worked 56 hours per fortnight and was paid an hourly rate of $30 per hour, namely gross pay of $1,680 per fortnight or $840 per week;
b. there are no bank records, tax records or a contract of employment in evidence to corroborate the lay evidence;
c. the timesheets, if I am to accept the applicant’s submissions which I do not, indicate that the applicant worked 50 hours per week from February 2021;
d. there is no other evidence to indicate that the applicant was working 57 hours per week and paid in cash for that work for the respondent, and
e. there are no payslips or other evidence that supports that the applicant commenced work for the respondent in January 2021 and was receiving earnings for work.
The timesheet records are also of little probative value to demonstrate that iCare’s calculation of the applicant’s PIAWE was incorrect, for the following reasons:
a. it is unclear what these timesheets represent;
b. while the header of some of the timesheets record “sunny building construction”, this evidence does not indicate that this is an official document of the respondent;
c. there is no document that interprets the timesheets to explain that it is a record of the time the respondent’s employees worked and that the entry of “Kean Kok Chee” was entered and signed by the applicant;
d. if I were to accept that the timesheets demonstrate that the applicant commenced work for the respondent prior to 13 April 2021 and worked 57 hours per week, which the applicant purports to submit, the timesheets do not indicate that the applicant was “earning” an income for that work in employment within the meaning of cl 6(1) of Sch 3 to the 1987 Act, and
e. the only evidence that in-part corroborates the timesheets is the lay statement evidence. However, for the reasons stated above the lay statement evidence must be treated with caution.
For the above reasons, I am not satisfied that the timesheets alone or when read together with the lay statement evidence demonstrate that the applicant was earning $26 per hour and receiving earnings for 57 hours per week of work performed in employment with the respondent from January 2021.
Consistent with the Workers Compensation Guidelines, iCare assessed the applicant’s PIAWE based on the available payslips on file.[6] Based on those payslips, iCare correctly identified the following relevant factors to calculate the applicant’s PIAWE:
a. relevant earning period - 13 April 2021 to 21 June 2021 (10 weeks);
b. total earnings for the relevant period - $8,400, and
c. average earnings for the relevant period - $840 per week.
[6] Workers Compensation Guidelines, dated 1 March 2021, 10.2.
The applicant bears the onus to establish on the balance of probabilities that iCare erred in the calculation of PIAWE. For the reasons set out above, the applicant has failed to identify any error in the method or material relied on by iCare to determine his PIAWE. The evidence presented by the applicant to demonstrate that iCare’s PIAWE determination was wrong or that a higher PIAWE rate should be awarded was inadequate and insufficient to discharge the relevant onus on the balance of probabilities.
It follows that I decline to set aside the work capacity decision.
Accordingly, I decline to make an interim payment direction.
0
4
0