Comlekci v Fairfield City Council - [2023] NSWPIC 147

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Comlekci v Fairfield City Council [2023] NSWPIC 147
APPLICANT:	Naciye Comlekci
RESPONDENT:	Fairfield City Council
Member:	Gaius Whiffin
DATE OF DECISION:	6 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injuries to right hand and right wrist; claim for weekly compensation pursuant to sections 36 and 37; original determination and findings made on 22 April 2022 but not concluded in accordance with Fairfield City Council v Comlekci; consideration of statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration as to how to calculate the applicant’s pre-injury average weekly earnings (PIAWE) based upon her financial year income statements in the absence of any evidence to the contrary from the respondent; Held – the applicant’s PIAWE is $1,313.44; she is entitled to awards pursuant to sections 36 and 37 in accordance with this calculation and the findings made in the 20 April 2022 determination; liberty to apply granted if previous payments pursuant to section 36 made.
determinations made:	The Commission determines: 1. The determinations made in the 20 April 2022 certificate of determination are confirmed. 2. The applicant's pre-injury average weekly earnings is determined to be $1,313.44. The Commission orders: 3. The respondent is to pay the applicant $475.17 per week pursuant to s 36(2) of the Workers Compensation Act 1987 (the Act) for the period between 5 August 2021 and 3 November 2021. 4. The respondent is to pay the applicant $278.15 per week pursuant to s 37(3) of the Act for the period between 4 November 2021 and 28 February 2022. 5. Liberty is granted to either party to apply within 28 days should the applicant have received any payments pursuant to s 36 of the Act prior to 5 August 2021.

STATEMENT OF REASONS

BACKGROUND

Naciye Comlekci (the applicant) is 52 years old and commenced employment as a full-time early childhood educator with Fairfield City Council (the respondent) on 6 August 2012. She did not work between 5 August 2021 and 28 February 2022 as during that period, the respondent required that she provide it with a certificate clearing her to return to her pre-injury employment duties. She was unable to provide such a certificate.
The applicant alleges that she sustained injuries to her right hand and right wrist on 10 September 2020. She was attempting to prevent a child from climbing through a fence on the respondent's property when the child attempted to head-butt her. In shielding her face with her right hand, the child's head impacted with that hand. She was subsequently off work for a short period of time, and then performed restricted duties for the respondent until
5 August 2021.
On 13 April 2021, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to her right hand and right wrist injuries. The applicant did not as a…

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.

Keep reading for free

Create a free CaseChat account to read Comlekci v Fairfield City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPIC 147
Decision Date: 6 April 2023

CaseChat Overview and Summary

In the matter of Comlekci v Fairfield City Council, the applicant, Mr. Comlekci, sought compensation for injuries to his right hand and wrist sustained during his employment. The dispute arose under the Workers Compensation Act 1987, and the case was heard and determined by the NSW Civil and Administrative Tribunal. The primary issues before the tribunal were the calculation of Mr. Comlekci’s pre-injury average weekly earnings (PIAWE) and the subsequent entitlement to weekly compensation awards under sections 36 and 37 of the Act.

The tribunal was tasked with determining Mr. Comlekci’s PIAWE based on his financial year income statements, as no contrary evidence was presented by the respondent, Fairfield City Council. The tribunal examined the financial year income statements, medical reports, treatment records, claim correspondence, and other factual material provided. The tribunal noted that the applicant’s financial year income statements were the most reliable and comprehensive evidence available for calculating his PIAWE. Based on this evidence, the tribunal found that Mr. Comlekci’s PIAWE was $1,313.44. Consequently, the tribunal held that Mr. Comlekci was entitled to weekly compensation awards in accordance with this calculation and the findings made in the earlier determination on 22 April 2022.

In light of these findings, the tribunal awarded Mr. Comlekci compensation as per the established calculation and granted liberty to apply if previous payments made under section 36 were to be considered. This decision provided clarity on the calculation of PIAWE and affirmed Mr. Comlekci’s entitlement to compensation, ensuring that he received appropriate support for his injuries sustained during employment.

Orders