Chung v The Benevolent Society - [2012] NSWWCCPD 45

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Chung v The Benevolent Society [2012] NSWWCCPD 45
APPELLANT:		Leila Chung
RESPONDENT:		The Benevolent Society
INSURER:		Employers Mutual Ltd
FILE NUMBER:		A1-2029/12
ARBITRATOR:	Ms J Connelly
DATE OF ARBITRATOR’S DECISION:		1 June 2012
DATE OF APPEAL DECISION:		24 August 2012
SUBJECT MATTER OF DECISION:		Section 36 of the Workers Compensation Act 1987, meaning of current weekly wage rate determined “from time to time”; s 42(1) of the Workers Compensation Act 1987, effect of short-term variation of contract of employment on calculating average weekly earnings
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turner Freeman Lawyers
Respondent:	Kaden Boriss
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 1 June 2012 is revoked and the following orders are made in its place: 1. The respondent is to pay the applicant weekly compensation pursuant to s 36 of the 1987 Act in the sum of $1,202.88 from 10 November 2009 to 20 April 2010. 2. The respondent is to have credit for payments made to the applicant from 10 November 2009 to 20 April 2010. 3. The respondent is to pay the applicant’s costs, including the costs of the appeal.

BACKGROUND TO THE APPEAL

The appellant, Ms Chung, was employed by the respondent, The Benevolent Society, as a network manager. She is 58 years of age.
In late 2007, Ms Chung was diagnosed with an autoimmune condition and, in mid-2008, she requested leave without pay to enable her to pursue treatment for her condition.
Ms Chung was granted leave without pay from 16 July 2008 until July 2009.
When Ms Chung sought to return to her full-time position with the respondent, she was informed that, due to a business restructure, her position no longer existed. As no commensurate positions were available for Ms Chung at that time, she agreed to accept a temporary role as a project manager, working part-time two-and-a-half days per week from 10 August 2009 to 11 November 2009. She was to maintain her title and be paid at her normal rate of pay for a network manager on a pro rata basis. On 14 August 2009, the worker signed a change of employment details form confirming the agreement.
On 25 September 2009, that is, while the worker was still working part-time, she injured her shoulder during a fall at work and was incapacitated.
The employer accepted liability for the worker’s injury and commenced payment of weekly compensation under s 36 of the Workers Compensation Act 1987 (the 1987 Act) at a rate calculated by reference to the worker’s part-time earnings.
Through her solicitors, Ms Chung claimed that she was entitled to weekly compensation, following the expiration of the three-month temporary appointment, at the rate calculated by reference to her full-time earnings, namely, $1,503.66 per week.
In a notice issued under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Employers Mutual NSW Ltd rejected the worker’s claim that she was entitled to be compensated at the rate of $1,503.66 based on her former full-time earnings. It asserted that Ms Chung’s entitlement to weekly compensation required a determination of the worker’s current weekly wage rate under s 42 of the 1987 Act by reference to the work performed by her immediately before being incapacitated. That work was the part-time work, which attracted a lower rate of weekly compensation (for which it accepted liability).
On 29 February 2012, Ms Chung lodged an Application to Resolve a Dispute in the Commission.
Ms Chung claimed weekly compensation at the rate of $1,503.66 per week from 20 October 2009 to date and continuing. The claim was subsequently amended to the period from 10 November 2009 to 20 April 2010. The worker alleged injury to both shoulders and psychological injuries in respect of injuries sustained on 25 September 2009 and 21 August 2009.
Pursuant to an Application to Admit Late Documents lodged on 26 March 2012, the employer was given leave to file a Reply to the Application. The respondent disputed liability for the reasons referred to in the s 74 notice.
There is no issue that Ms Chung was injured in the course of her employment and it is agreed that she was incapacitated during the period claimed. The only issue before the Arbitrator concerned the calculation of the worker’s current weekly wage rate for the period in question.
On 30 May 2012, the matter was listed for an arbitration hearing before a Commission Arbitrator. Both parties were represented by counsel. After hearing submissions from counsel, the Arbitrator issued an extempore decision, finding in favour of the respondent. The brief reasons for her decision are contained within the transcript of the proceedings of 30 May 2012.
On 1 June 2012, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:

1.     By consent the Application to Resolve a Dispute is amended at Part 5 to make a claim for weekly benefits compensation for the period 10/11/09 to 20/4/10.
2.     By consent the Reply filed by the respondent on 26/3/12 is admitted into evidence.
3.     Pages 2, 5 and 7–11 of the Application to Admit Late Documents filed by the respondent at the hearing are admitted into evidence.
4.     Award for the respondent.
5.     No order as to costs.”

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can proceed on the papers, without a formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

PRELIMINARY MATTERS

Section 352(3) is in the following terms:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
There is no dispute between the parties that the threshold requirements as to quantum and time, as found in the provisions of ss 352(3) and 352(4) of the 1998 Act, have been met.

THE EVIDENCE

Ms Chung

Ms Chung provided a signed statement of evidence dated 28 February 2012. She commenced employment with The Benevolent Society on 18 September 2006 as a network manager. She was employed in a full-time position working 38 hours per week. She was given an employment contract which confirmed her employment status as a permanent, full-time network manager.
In late 2007, Ms Chung was diagnosed with an autoimmune condition which resulted in voluntary muscle fatigue. With the employer’s consent, she took leave without pay on 16 July 2008, on the basis that she intended to return to work in July 2009 in a similar full-time managerial position.
Ms Chung stated that she planned to return to work on 13 July 2009, but was advised that, due to a business restructure, her position of network manager in her district had been merged with another district, such that her position no longer existed. She was not made redundant and stated, “I was still employed as a full-time employee”.
As her position no longer existed, her employer sought to find an alternative position within the organisation. Regrettably, no commensurate positions were available at that time and, instead, Ms Chung was asked to take on a temporary project manager role. The role was part-time, requiring her to work two-and-a-half days per week “with similar title and pay but lower responsibilities”. Ms Chung stated that she was offered the role on the basis that she would be paid at the same rate as a network manager. She added, “I agreed to the proposal as it was only temporary and that, in that same period, my employer would be allocating a permanent full-time role”.
At her employer’s request, Ms Chung signed a document entitled Employment Variation Form, the detail of which I will come to in due course. She commenced performing her temporary role and continued to perform that role satisfactorily until she sustained a psychological injury following certain events that took place on 21 August 2009. She also sustained an injury to her shoulder on 25 September 2009. Liability for both of those claims has been accepted.
Ms Chung stated that, when her claim was lodged for weekly compensation payments, she was working in the temporary part-time role and payments of compensation were made to her based on her earnings in that role. Ms Chung said:
“At all times prior to my leave I was employed in a full-time position. At no time had there been any suggestion that I would be required to change position level or that I would not be returned in a full-time capacity. For all intents and purposes I was to return from leave in July 2009 it should have been a full-time role. I accepted that my employer had undertaken a restructure and agreed, on a temporary basis, to perform part-time duties so as to assist my employer whilst my position was being re-allocated.
Had I not been injured following the three-month temporary variation, I would have returned to a full-time role and therefore I would have returned to my full-time pay of 38 hours per week at $39.57 per hour.”

The “Change of Employment Details” document

Omitting formal parts, the document is in the following terms:
“Change in Status to: Full time□ Part time□ Casual□ – Leila is F/T employee, currently doing 16 hours/week for 3 months
Variation in weekly working hours to 16 hours per week
New Position Title Manager
Change of Total Remuneration Package (TRP) – Same as before LWOP”
The “Effective Date” of the document was said to be 18 August 2009 and the “End Date” was 10 November 2009.
The document was signed by the worker on 6 August 2009 and by her manager on 14 August 2009.

Relevant correspondence

The appellant’s solicitors wrote to the respondent on 12 October 2011, seeking various information concerning the worker, including the following:
“Would you kindly also confirm that our client’s return from leave was on the basis that she would return to full-time employment or the same or similar role as she was performing prior to her leave.”
Samantha Elkins, the HR manager for the respondent, wrote to the appellant’s solicitors on 15 December 2011. The relevant extract from the correspondence is in these terms:
“Both the Senior Manager and Mrs Chung advised the HR Department that the agreement regarding the terms of Mrs Chung’s return from leave without pay were that Mrs Chung would return to a full-time or part-time role depending on what was available in the organisation at the time. The Senior Manager and Mrs Chung met on her return from extended leave without pay and she was offered and accepted a part-time officer role, her hourly rate was kept to the same and pro rata-ed to her new hours. Mrs Chung was injured a few days after this agreement.”

LEGISLATION

Section 36 of the 1987 Act provides:
“36 Weekly payment during total incapacity—first 26 weeks
(1)The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate.
(2)In this section:
current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.”
Section 42(1) is in the following terms:
“Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:
(a)was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))—is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
(b)was an employee of the Crown or of an employer constituted by an Act and was remunerated, pursuant to a determination made by the Crown or made under the Public Service Act 1979 or under the provisions of any other Act, being a determination fixing or providing for the fixing of a rate for a weekly or longer period—is, at any time during that incapacity, a reference to the rate of remuneration under that determination at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
(c)belonged to a class of workers prescribed by the regulations for the purposes of this paragraph—is a reference to a rate calculated in accordance with a formula (or calculated in any other manner) prescribed by the regulations in respect of that class of workers for the purposes of this paragraph, or
(d)was not a worker or employee to whom paragraph (a), (b) or (c) applies—is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate.”
Section 42(8) relevantly provides:
“In this section:
appropriate period, for the purposes of the calculation of ‘average weekly earnings’ in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.
average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:
(a) the time of the injury concerned,
(b) the time at which the relevant weekly payment of compensation is due,
with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.”
Section 43(1) provides:
“For the purposes of the provisions of this Act relating to ‘earnings’ and ‘average weekly earnings’ of a worker, the following rules shall be observed:
(a)     Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned:
(i)by a person in the same grade, employed at the same work, by the same employer, or
(ii)if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district.
(b)     If the worker has entered into concurrent contracts of service with 2 or more employers under which he or she worked at one time for one such employer, and at another time for another such employer, the worker’s average weekly earnings shall be computed as if the worker’s earnings under all such contracts were earnings in the employment of the employer for whom the worker was working at the time of the injury.
(c)     Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the worker was employed at the time of the injury, uninterrupted by absence from work due to illness, strikes, lockouts, bad weather or any other unavoidable cause.
(d)     If the employer has been accustomed to pay to the worker a sum to cover any special expenses incurred by the worker because of the nature of the employment, the sum so paid shall not be reckoned as part of the earnings.
(e)     The average weekly earnings of a casual worker, that is to say a worker whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry, shall be computed as if the worker’s earnings under all his or her contracts of service, for a period of 12 months preceding the injury or any shorter period during which the worker may have been engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury.
(f)     If a worker is a worker to whom paragraph (e) applies or has been absent from work by reason of illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause, the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section:
(i)in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage, whichever is the greater, and
(ii)in the case of any other worker, be deemed to be not less than the full wage for a full normal working week of that worker.”

THE ARBITRATOR’S REASONS

The Arbitrator’s reasoning commenced with s 36 of the 1987 Act, which is concerned with the weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity. It provides that the compensation shall be the amount of the worker’s current weekly wage rate.
Section 36(2) defines “current weekly wage rate” to mean the worker’s current weekly wage rate determined from time to time in accordance with s 42.
The Arbitrator determined that s 42(1)(d) applied to the worker. That provision states that a reference to the current weekly wage rate of a worker is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated.
Average weekly earnings are calculated in accordance with s 43 of the 1987 Act. In particular, the Arbitrator placed reliance on s 43(1)(a), which states that “[a]verage weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated …”. The Arbitrator noted that there had been agreement as to the worker’s earnings immediately prior to becoming incapacitated.
The Arbitrator rejected the submission that there could be more than one current weekly wage rate for the purposes of s 36, that is, the Arbitrator was rejecting the proposition that there could be one current weekly wage rate set during the three-month variation of the worker’s contract of employment, reverting to another and higher rate at the expiration of that period.
The Arbitrator held that she was required to find that the current weekly wage rate under s 36 was the worker’s rate of earnings immediately prior to becoming incapacitated. That rate was the rate at which the employer accepted liability and had been voluntarily making payments of compensation to the worker. For those reasons, the Arbitrator entered an award for the respondent.

SUBMISSIONS

Appellant’s submissions

The appellant’s principal submission is that the Arbitrator erred in determining the calculation of the worker’s current weekly wage rate by reference only to the rate applicable immediately prior to the injury.
Section 36(2) makes specific allowance for the current weekly wage rate being determined “from time to time in accordance with s 42”. The appellant’s submission is that the reference to the expression “from time to time” envisages that there may very well be more than one current weekly wage rate for the purposes of s 36.
The appellant further submits that the Arbitrator was taken to the meaning of the words in s 43(1)(a), “best calculated”, as discussed in Pratt v Claydon (1996) 14 NSWCCR 86 (Pratt) at 92. In particular, it is submitted that it was emphasised to the Arbitrator that, in calculating average weekly earnings, one must import an element of judgmental evaluation into the computation process.
It is submitted that the Arbitrator’s determination assumes that an injured worker will always be confined to the relevant current weekly wage rate at the time the worker was injured. Two examples are cited in support of the argument that the Arbitrator’s reasons are inconsistent with the objects of the Act. I have had regard to the two particular circumstances cited and the opposition’s comments in relation to them, but it is unnecessary to set them out in full in this decision.
The appellant’s submission is that s 36 of the 1987 Act envisages more than one current weekly wage rate. It requires that the current weekly wage rate be determined from time to time.
The appellant asserts that the definition of “average weekly earnings” in any event requires some level of judgment in determining what an appropriate wage rate is. The appellant conceded that the calculation of the worker’s current weekly wage rate fell within s 42(1)(d) of the 1987 Act and that requires a determination of the average weekly earnings before the prescribed proportion could be applied.
The relevant definition of “average weekly earnings”, as detailed in s 42(8), includes a reference at (b) to “the time at which the relevant weekly payment of compensation is due”, and the section goes on to note:
“with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.”
The appellant submits that the Arbitrator made no reference to the definition of average weekly earnings in her determination, which was relevant to the correct interpretation of s 42(1)(d).
The computation of average weekly earnings is provided by s 43 of the 1987 Act and, in particular, s 43(1)(a). There is no dispute that, as of 8 November 2009, the appellant, but for injury, would have returned to full-time employment. The appellant further submits that there is no dispute as to the rate at which she was to be paid when she returned to full-time employment, that is, $1,503.66 (Application to Resolve a Dispute page 28 at [14]), the prescribed proportion of which was agreed at $1,202.88, that is, 80 per cent of $1,503.66 (per s 42(1)(d)).
The relief sought by the appellant is an award in favour of the worker as follows:
(a) Respondent is to pay the applicant $1,202.88 per week pursuant to s 36 from 9 October 2009 to 20 April 2010.
(b) The respondent to have credit for payments made in the period.
(c) Respondent to pay the applicant’s costs, including the cost of the appeal.

Respondent employer’s submissions

The respondent concedes that the only issue in this appeal is the calculation of the worker’s weekly entitlement to compensation pursuant to s 36.
It is not conceded that the appellant would definitely have returned to her full-time duties. The respondent submits that the appellant would have returned to a full-time or a part-time role depending on what was available in the organisation at the time. It submits that there was no contract for a return to full-time employment. The content of the document, “Change of Employment Details”, in the respondent’s submission, does not support a conclusion that there was to be a return to full-time employment.
The respondent submits that, even if it was the appellant’s intention to return to full-time duties at the expiration of the three-month part-time contract, it is irrelevant for the purposes of her compensation entitlement pursuant to s 36.
The respondent submits that the words of s 42(1)(d) are clear and unambiguous. Immediately before the appellant became incapacitated for work, the work being performed by her was that of a part-time employee doing 16 hours per week. That was the contract of employment that existed between the appellant and the respondent as at the date of injury and immediately before the worker became incapacitated.
The respondent submits that s 43 has no work to do in this case, as the appellant’s average weekly earnings immediately before her incapacity were known and have been agreed upon.
The respondent submits that s 36 would be completely unworkable if there were ever-changing current weekly wage rates resulting from different average weekly earnings calculated and re-calculated by reference to anticipated changes at various intervals during the first 26 weeks of incapacity.
Thus, it is submitted that the correct sum to which the appellant is entitled pursuant to s 36 for the first 26 weeks of incapacity is that which she was earning immediately before becoming incapacitated (s 42(1)(d)), that is, $506.36 per week (as agreed).
The respondent submits that the Arbitrator’s decision is therefore correct and should be confirmed.
The respondent seeks an order that the appellant pay the respondent’s costs of the appeal.

DISCUSSION

It is agreed that, during the relevant period, the worker was totally incapacitated and her entitlement to compensation is determined by reference to s 36 of the 1987 Act. Section 36 provides that weekly compensation during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate. The current weekly wage rate means the worker’s current weekly wage rate determined from time to time in accordance with s 42.
The parties agree that, as the worker was not remunerated under an award, the relevant subsection is s 42(1)(d). That subsection provides that a reference to the current weekly wage rate is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of the work being performed by the worker immediately before becoming incapacitated.
Section 42(8) defines average weekly earnings as the average weekly earnings for the worker determined in accordance with s 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:
(a) the time the injury occurred;
(b) the time at which the relevant weekly compensation is due.
The determination of (b) is made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured, and continued to be employed in the same or some comparable employment.
Section 43 provides that, for the purposes of the provisions of the 1987 Act relating to “earnings” and “average weekly earnings”, certain rules are to be observed. The primary rule is that the average weekly earnings shall be computed in such a manner as is best calculated to give the rate per week at which the worker was being remunerated. Other rules apply when, because of the shortness of time during which the worker has been in the employment of the employer, or the terms of the employment, it is impractical at the date of injury to compute the rate of remuneration. However, those rules are not currently relevant.
The worker’s unchallenged evidence is that, after her extended period of leave without pay, she had planned to return to work on 13 July 2009 to her former position as a network manager, working full-time. The exchange of correspondence between Samantha Elkins on behalf of the respondent and the appellant’s solicitors confirms that that was both parties’ intention, subject to there being a position available.
It is not in dispute that, when the worker sought to return to work, due to a restructure, her position was no longer available, and a full-time position could not be immediately found. In those circumstances, the worker agreed to a variation of her contract of employment, to return to work on a part-time basis, working 16 hours per week. The variation was for a period of three months, concluding on 10 November 2009. So much is confirmed by the signed “Change of Employment Details” document referred to at [26] of this decision.
The respondent does not concede that, at the end of that three-month period, the worker would definitely have returned to her full-time duties. It submits that the variation does not support a conclusion that there was to be a return to full-time employment.
Applying s 42(8), the assessment of the worker’s average weekly earnings from 10 November 2009 is to be made on an assumption of what the worker would probably have been earning if the worker had remained uninjured and remained in the same or some comparable employment.
Considering the evidence as a whole, I think it is more probable than not that, at the end of the three-month variation period, the worker would have returned to full-time work in the same or some comparable employment. I have reached that conclusion based on a number of factors. Ms Chung is a permanent, full-time employee of the respondent. Her consent to a variation of her contract of employment was for a limited period set to expire on a fixed date. The uncontested evidence is that Ms Chung intended to return to full-time work. The correspondence from Ms Elkins confirms that that was also the employer’s intention, subject to there being a position available. The evidence is silent as to whether a position was available for Ms Chung at the end of the three-month period. I would have expected that, had there been evidence that a position was not available for her, that evidence to that effect would have been led at the arbitration. It was not.
Given the finding of fact in the preceding paragraph, the principal issue in this appeal is whether the worker’s average weekly earnings are to be calculated for the whole of the period of total incapacity by reference to the part-time earnings Ms Chung was earning immediately before she was injured, or whether the assessment of her average weekly earnings should take into consideration the earnings she probably would have earned as a full-time employee after the expiration of the three-month contract variation.
Section 36 expressly provides that the compensation payable to an injured worker during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate determined from time to time in accordance with s 42. Neither of the parties directed my attention to any authority as to the meaning of the words “from time to time” in this context. The appellant submits that it envisages that there may be more than one current weekly rate for the purposes of s 36. The respondent’s submission is to the contrary. It argues that the construction for which the appellant contends would be completely unworkable. I disagree, for the following reasons.
In my view, the inclusion of the words “from time to time” in the definition of “current weekly wage rate” in s 36(2) strongly favours a construction that the current weekly wage rate will vary from time to time as the circumstances of the case require.
In Carter v Carter (1959) SR (NSW) 163 (Carter), the NSW Court of Appeal was concerned with the meaning of the words “from time to time” as appearing in s 21(1) and (4) of the Deserted Wives and Children Act 1901–1952. Street CJ (Owen and Herron JJ agreeing) held that, in the context of that legislation, the words “from time to time” in reference to maintenance orders did not mean that only one order could be made, and permitted the exercise of the power to vary an order as frequently as the circumstances of the case required. While Carter may be of limited assistance in the construction to be given to the words “from time to time” in s 36(2), those words must have some work to do. The plain meaning of those words favours a construction that the current weekly wage rate can vary according to the circumstances of the case.
The proposition may be tested this way. A worker’s entitlement to weekly compensation pursuant to s 36 will not necessarily arise in one continuous period commencing on the date of injury. The entitlement may be broken up into several periods that can be months or even years apart. For example, it may be the case that a worker is totally incapacitated following operative or other treatment that may occur months or years after the incapacitating injury, by which time his or her earnings may have altered significantly from the time at which the injury occurred. In such a case, the worker would be entitled to have his or her current weekly wage rate assessed (assuming that s 42(1)(d) applied) at the rate “best calculated to give the rate per week at which the worker was being remunerated” at the time of the injury or the time at which the relevant weekly payment of compensation is due, whichever produces the higher figure (s 42(8)).
For these reasons, the Arbitrator’s conclusion that she was bound to find only one current weekly wage rate, being the rate set by reference to the worker’s part-time earnings, was an error.
The compensation paid to the worker during the period of her part-time employment is not in issue. The question then is whether Ms Chung is entitled to be compensated for the balance of the period of incapacity, following the expiration of the three months, by reference to her full-time earnings. Pursuant to s 42(8), the assessment of the worker’s average weekly earnings is determined either by reference to the worker’s earnings at the time of injury or the time at which the compensation is due, taking into consideration the worker’s probable earnings at that time, whichever produces the higher average weekly earnings.
Pratt, on which the appellant relies, is a Court of Appeal decision concerned with the assessment of the weekly compensation for a retired worker who was injured while performing a one-off, short-term period of employment. Priestley JA, with whom Powell and Beazley JJA agreed, held that the primary rule in s 43(1)(a) requires the “average weekly earnings” as defined in s 42(8) to “be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated” at the time of the incapacitating injury. His Honour held at [92C] that the words “best calculated” import an element of judgmental evaluation into the computation process.
The respondent’s submissions place great emphasis on the reference in s 42(1)(d) to the worker’s average weekly earnings being assessed by reference to the worker’s earnings in respect of the work being performed immediately before becoming incapacitated. Its submission is in substance that the calculation of the worker’s earnings at the time of injury is all that is required. It submits that the worker’s intention to return to full-time work is irrelevant. I disagree.
Section 42(1) commences with the qualification “Subject to this section a reference to the current weekly wage rate … (emphasis added)”. In applying s 42(1)(d), regard must had to the definition of “average weekly earnings” in s 42(8). That subsection provides the alternative means of calculating the worker’s average weekly earnings such that the worker is entitled to the higher of the earnings either at the time of injury or the earnings that would have been paid (if the worker had been uninjured) at the time the compensation is paid. I would add that the respondent’s submissions are silent as to the application of s 42(8).
Contrary to the respondent’s submission, s 43 does have work to do in the circumstances of this case. That section envisages that there will be a variety of circumstances which will complicate the assessment of a worker’s average weekly earnings, and provides a series of rules designed to best calculate the rate per week at which the worker was being remunerated in order to overcome any unfairness to the worker and the employer, and involves an element of judgmental evaluation as noted in Pratt, but applying the terms of the legislation.
On my reading of s 42(8) and applying s 43(1)(a), the task of assessing the worker’s average weekly earnings in the circumstances of this case requires an assessment of what Ms Chung would probably have been earning when the compensation was due, that is, at the expiration of the three-month period of part-time work, had she not been injured and had she continued to be employed in the same or some comparable employment.
As I have found, at the time the compensation was due, the probability is that Ms Chung would have returned to a full-time position and would have been earning the agreed weekly sum of $1,503.66 per week, and that sum is the amount of the worker’s current weekly wage rate for the purposes of s 36. The prescribed proportion under s 36 was agreed at $1,202.88.

DECISION

The Arbitrator’s determination of 1 June 2012 is revoked and the following orders are made in its place:
1. The respondent is to pay the applicant weekly compensation pursuant to s 36 of the 1987 Act in the sum of $1,202.88 from 10 November 2009 to 20 April 2010.
2. The respondent is to have credit for payments made to the applicant from 10 November 2009 to 20 April 2010.

COSTS

The respondent is to pay the applicant’s costs, including the costs of the appeal.

Judge Keating

President
24 August 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE