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…

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: [2012] NSWWCCPD 45
Decision Date: 24 August 2012

CaseChat Overview and Summary

The case of Chung v The Benevolent Society involved the applicant, Chung, who sought compensation for injuries sustained while employed by the respondent, The Benevolent Society. The dispute centred around the calculation of the weekly compensation payable under section 36 of the Workers Compensation Act 1987. The applicant argued that the Arbitrator had incorrectly calculated his current weekly wage rate for the purposes of determining his average weekly earnings, particularly in relation to a temporary reduction in his employment contract. The matter was heard and determined by the Industrial Division of the Supreme Court of New South Wales.

The central legal issues that the court had to decide involved the interpretation of section 36 of the 1987 Act, which requires that the current weekly wage rate be determined "from time to time". The court also had to consider how a short-term variation of the contract of employment, as provided for under section 42(1) of the 1987 Act, affects the calculation of average weekly earnings. Specifically, the court needed to determine whether the Arbitrator correctly took into account the temporary reduction in Chung’s employment conditions when calculating his average weekly earnings for the purposes of determining his weekly compensation.

The court found that the Arbitrator had erred in law by not correctly applying the statutory provisions when calculating the applicant’s average weekly earnings. The court held that the Arbitrator should have considered the applicant's full-time salary, rather than the reduced salary during the period of his injury, as the appropriate figure for determining his current weekly wage rate. The court held that the statutory provisions required the Arbitrator to determine the weekly wage rate as at the date of the injury, without regard to any temporary reduction in the applicant's employment conditions. The Arbitrator’s determination was revoked, and the court made new orders for the payment of compensation, credit for prior payments, and costs.

Orders

Orders of the court

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

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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