Comlekci v Fairfield City Council

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 result receive any weekly compensation while she was off work between 5 August 2021 and 28 February 2022.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claimed weekly compensation from 5 August 2021 to
28 February 2022 and she also claimed expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The dispute was initially listed for conciliation/arbitration before the Commission on
22 March 2022. An extensive conciliation conference was held but the dispute failed to resolve. An arbitration hearing before me then ensued, which involved the parties providing written submissions and a certificate of determination being issued on 20 April 2022.
By the certificate, I made the following findings:
“1. The applicant sustained a personal injury arising out of or in the course of her employment with the respondent.
2. The applicant's employment with the respondent was a substantial contributing factor to the personal injury.
3. The applicant was incapacitated for work as a result of the personal injury between 5 August 2021 and 28 February 2022.
4. The applicant was able to earn $772.60 per week in suitable employment between 5 August 2021 and 28 February 2022.
5. The applicant requires medical treatment, and the respondent is liable to pay reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).”
By the certificate, I also made the following awards and directions, as I had determined that I did not have reliable documentation before me in order to calculate the applicant’s pre-injury average weekly earnings (PIAWE):
“6. The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the 1987 Act, including the cost of a bone scan with SPECT in accordance with the recommendation in Dr Oates’ report dated 1 October 2021.
7. The respondent is to file and serve a wage schedule and copies of the applicant’s payslips and wage records for the period 10 September 2019 and 10 September 2020 (and any other documentation relevant to the calculation of the applicant’s PIAWE) by 6 May 2022.
8. The applicant is to file and serve a wage schedule by 13 May 2022.
9. The applicant is to file and serve any submissions regarding the wage material and wage schedules by 13 May 2022.
10.The respondent is to file and serve any submissions regarding the wage material and wage schedules by 20 May 2022.
11.Any submissions in reply are to be filed and served by 25 May 2022.
12.At the conclusion of the time allowed for submissions the balance of the dispute will be determined ‘on the papers’.”
The respondent sought leave to appeal from the 20 April 2022 certificate of determination. On 8 February 2023, Wood DP (in Fairfield City Council v Comlekci [2023] NSWPICPD 6) refused leave to appeal and referred the dispute back to me for determination of the remaining issues in it. Essentially, she found [at 29]:
“The proceedings before the Member have not concluded. The Member is part way through a determination of the respondent’s entitlement to weekly compensation. At the end of the day, one or the other party may be aggrieved or satisfied with the result. I do not consider that it is in the interests of justice that the appeal process intervenes at this interlocutory stage. For that reason, together with the reasons expressed above, I do not consider that it is necessary or desirable for the proper determination of the dispute to grant leave to appeal the interlocutory decision.”
The dispute was therefore listed for a preliminary conference before me on 9 March 2023. On that occasion, Mr Lleonart appeared for the applicant, and Mr Macken appeared for the respondent. The applicant was also present, but no representative from the respondent’s self-insurance section was present.
At the preliminary conference, I noted that the applicant had complied (on 12 May 2022) with my initial orders 8 and 9 made on 20 April 2022, but that the respondent had not complied with my initial orders 7 and 10 made on that date. I made the following orders at the preliminary conference:
“1. On or before 10 March 2023, the applicant is to provide the respondent with her
submissions dated 12 May 2022 previously lodged with the Commission (including the
wages schedule and other attachments to those submissions).
2. On or before 24 March 2023, the respondent is to provide the applicant with and lodge with the Commission its response to the 12 May 2022 submissions (including any wages schedule in reply, all relevant pay records of the applicant’s in the 12 months prior to her injury, and a list of compensation payments made so far to the applicant).
3. All the documentation and the wage schedules served and lodged in accordance with orders 1 and 2, will be admitted into evidence unless either party approaches the
Commission for liberty to apply, before 31 March 2023.
4. The balance of the dispute in this matter will then be determined ‘on the papers’ after 31 March 2023.”
The respondent lodged brief submissions and a wages schedule (without any attached documentation, as requested in the orders made on 9 March 2023) on 30 March 2023.
The applicant advised the Commission by correspondence on 30 March 2023 that she did not wish to make any further submissions.

ISSUES FOR DETERMINATION

The parties agreed (and I confirmed) at the preliminary conference on 9 March 2023 that the following issues remained in dispute before I could make a final determination as to the applicant’s entitlement to weekly compensation between 5 August 2021 and
28 February 2022:
(a) what is the applicant’s relevant PIAWE, and
(b) had the applicant received any payments from the respondent prior to
5 August 2021 pursuant to s 36 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission when I made my initial determination on 20 April 2022, and they were also considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply and attached documents;
(c)    the respondent’s Application to Admit Late Documents lodged 14 March 2022 and attached documents – application consented to by the applicant;
(d)    only page 3 of the applicant’s Application to Admit Late Documents lodged
15 March 2022, and
(e)    the applicant’s Application to Admit Late Documents lodged 23 March 2022 and attached documents.
I have now determined to admit the following additional documents (lodged with the Commission since 20 April 2022) into evidence:
(a)    the six pages of attachments to the applicant’s submissions lodged 12 May 2022;
(b)    the applicant’s wages schedule lodged 12 May 2022, and
(c)    the respondent’s wages schedule lodged 30 March 2023.
The respondent objects to the admission of the attachments to the applicant’s 12 May 2022 submissions. The attachments consist of the applicant’s Australian Taxation Office income statements in relation to her employment with the respondent, for the financial years ending 2020, 2021, and 2022. The respondent correctly points out that the attachments should have been included in the ARD and that a wages schedule should have been lodged by the applicant in accordance with rule 68 of the Personal Injury Commission Rules 2021.
I however took the view when I made my determination on 20 April 2022 that I required extra information from the parties in order to determine the applicant’s PIAWE. The income statements assist me in this regard, and were lodged with the Commission on 12 May 2022 as the respondent had not complied with order 7 that I made on 20 April 2022. It is to be noted that that order had required the respondent to provide to the Commission payslips, wage records, and any other documentation relevant to the calculation of the applicant’s PIAWE, prior to 6 May 2022.
I made the orders on 20 April 2022 in relation to the provision of further information and documentation to allow me to calculate the applicant’s PIAWE, as I considered the orders to be appropriate pursuant to s 43(2) of the Personal Injury Commission Act 2020 (the 2020 Act), which states as follows:
“(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”
I also made the orders having regard to rule 74(c) of the Personal Injury Commission Rules 2021, which states as follows:
“The appropriate decision-maker for applicable proceedings except medical assessment proceedings is to take measures that are reasonably practicable to--
(c)ensure each party has the fullest opportunity practicable to have the party's case considered without compromising the objects of the Act.”
I do not consider that the orders in any way compromised the objects of the 2020 Act, “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”, pursuant to s 42 of the 2020 Act. Indeed, I consider that the orders reflected those objects, in circumstances where, as I observed at paragraph 127 of the 20 April 2022 determination:
“127. As there are competing PIAWEs without documentary corroboration, neither party has admitted PIAWE. In default of any agreement between the parties, and having now had the opportunity to review the submissions of the parties, I am not in a position to calculate the applicant’s PIAWE and her entitlements.”
The orders necessarily needed to provide procedural fairness to both parties in providing the further information and documentation to assist the Commission in this regard, and I consider that the timetable set by the orders provided the necessary procedural fairness.
The income statements were lodged with the Commission in accordance with the orders that I made on 20 April 2022, and I propose to now admit them into evidence.
I also exercise my discretion to admit the income statements into evidence pursuant to rule 67(4) of the Personal Injury Commission Rules 2021. The applicant had sought to obtain the consent of the respondent to the admission of the income statements, but that consent was not forthcoming either at the conciliation/arbitration on 22 March 2022 or thereafter. I consider that therefore, so long as the respondent was given time to consider the income statements (and if necessary obtain further evidence), the interests of justice dictate that the income statements should be admitted into evidence. As to the time given to the respondent in this regard, the respondent was advised at the preliminary conference on
9 March 2023 that I intended to admit the income statements into evidence, but in its submissions dated 30 March 2023, its objections to the admission of the income statements centred on procedural issues, rather than any suggestion that it would be prejudiced by the admission of the income statements or needed more time to consider them.
It is of course important in this regard to understand that the income statements record the payments made by the respondent to the applicant, and are therefore documents within the knowledge of the respondent. The respondent has made no submission that the records are inaccurate or incomplete. It is difficult to see therefore how the admission of the documents can prejudice the respondent.
As the income statements assist me to determine the applicant’s PIAWE, and as they are in fact the only documentation provided by either party to assist me in this regard, I certainly consider the interests of justice require their admission.
I further refer to Procedural Direction PIC3, cl 28 in relation to the admission of late documents. In considering the matters raised in that clause:
(a)     I consider the interests of justice require the admission of the income statements;
(b)     I do not consider that the respondent is significantly prejudiced by their admission, whereas without their admission, I am unable to determine the applicant’s PIAWE, so as to determine the extent of her compensation entitlements;
(c)     the timely resolution of the dispute will be significantly affected without the admission of them;
(d)     I consider their admission to be in accordance with the objects of the Commission pursuant to s 42 of the 2020 Act;
(e)     although the applicant has not adequately explained her delay in lodging them with the Commission, I do not believe that this failure should result in their exclusion having regard to the other matters in the clause, and
(f) I have noted that the applicant should have lodged them when she lodged the ARD - however again, I do not believe that this failure should result in their exclusion having regard to the other matters in the clause, especially as rule 67(4) of the Personal Injury Commission Rules 2001 specifically allows me to admit them in the interests of justice.

Applicant’s evidence

In my determination of 20 April 2022, I summarised the applicant’s evidence (as referred to in paragraph 14 above). I do not propose to repeat that summary, but I maintain my reliance upon it.
Since 20 April 2022, the applicant has lodged a wages schedule in which she alleges her PIAWE to be $1,351.66, and she has also lodged her Australian Taxation Office income statements, showing that she earned $67,836.52 gross in her employment with the respondent between 1 July 2019 and 29 June 2020 (reported by the respondent on
7 July 2020) and that she earned $70,173.46 gross in her employment with the respondent between 1 July 2020 and 28 June 2021 (reported by the respondent on 28 June 2021).

Respondent’s evidence

In my determination of 20 April 2022, I summarised the respondent’s evidence (as referred to in paragraph 14 above). I do not propose to repeat that summary, but I maintain my reliance upon it.
Since 20 April 2022, the respondent has lodged a wages schedule in which it alleges the applicant’s PIAWE to be $1,215.

Applicant’s submissions

The applicant’s original submissions were summarised in my determination of 20 April 2022. She lodged further written submissions on 12 May 2022.
In those further submissions, the applicant complains about the respondent’s failure to provide documentation in accordance with order 7 in the certificate of determination dated
20 April 2022. She asks me to draw an inference that the respondent has no evidence “that would assist its defence”.
While I do not need to draw such an inference, I do find it surprising that the respondent (which would have in its easily obtainable possession all payment records relating to the applicant) has not provided any of those records to the Commission, despite being ordered to do so on both 20 April 2022 and 9 March 2023.
The applicant’s submissions otherwise refer to specifically her income statements for the 2020 and 2021 financial years. The submissions note that in the 2021 financial year, the applicant’s average weekly wage was $1,349.49 (which is consistent with both her statement evidence and her 3 February 2022 payslip). However, in my 20 April 2022 determination, I explained that I found the payslip to be of little probative value in calculating the applicant’s PIAWE as it referred to post-injury rather than pre-injury earnings. Similarly, much of the earnings shown in the 2021 income statement refer to post-injury earnings after
10 September 2020.
The applicant also alternatively invites me to undertake a pro rata approach to the calculation of the applicant’s PIAWE “based upon a calculation of 293 days, being 42 weeks (rounded) from 10 September 2019 until 30 June 2020 and a further 72 days being 10 weeks (rounded) for the period 1 July 2020 until 10 September 2020”.

Respondent’s submissions

The respondent’s original submissions were summarised in my determination of
20 April 2022. It lodged further written submissions on 30 March 2023.
The submissions make two points:
(a) the applicant’s income statements should not be admitted into evidence – I have already rejected that submission in this determination, and
(b) the applicant’s claim for weekly compensation should fail “in the absence of proper evidence having been filed in accordance with the Rules and Practice Directions of the Commission” - in the alternative, it is submitted that any compensation should be determined in accordance with a PIAWE calculation of $1,215 – the respondent fails however to provide any evidence to support its calculation in this regard.

FINDINGS AND REASONS

PIAWE

In order to determine the applicant’s weekly compensation entitlements between
5 August 2021 and 28 February 2022, her PIAWE needs to be calculated and then compared with the level of the current weekly earnings ($772.60) that I found (in the certificate of determination dated 20 April 2022) that she was able to earn in suitable employment during that period.

Clause 2 to Schedule 3 of the 1987 Act provides:
“2 MEANING OF ‘PRE-INJURY AVERAGE WEEKLY EARNINGS’
(1)‘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.
(2)Except as provided by this clause (or by regulations made under this clause), in calculating the ‘pre-injury earnings’ received by a worker in employment for the purposes of subclause (1), 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 the injury (‘the relevant earning period’).”
As the applicant’s date of injury was 10 September 2020, I therefore need to determine her earnings in the respondent’s employment between 13 September 2019 and
10 September 2020 (a period of 52 weeks having regard to 2020 being a leap year).
I am satisfied that I can use the applicant’s income statements (especially in the absence of any evidence provided by the respondent to the contrary) to determine her earnings in this period.
I accept that I can use the pro rata approach suggested by the applicant (see paragraph 35 above). There is no suggestion that (at least during the entirety of the 2020 and 2021 financial years) the applicant’s role or duties with the respondent changed significantly. She was a full-time early childhood educator, working five days per week, albeit apparently at different Early Learning Centres to the Wetherill Park Early Learning Centre prior to the beginning of 2020. I therefore consider that in order to determine her earnings between
13 September 2019 and 30 June 2020, I can use an average of her earnings during the entire 2020 financial year, and likewise, I consider that in order to determine her earnings between 1 July 2020 and 10 September 2020, I can use an average of her earnings during the entire 2021 financial year.
In the absence of weekly pay records produced by the respondent, the above approach seems to be the most sensible and accurate approach in order to determine the applicant’s PIAWE.
I therefore calculate the applicant’s PIAWE as follows:
·        $67,836.52 (2020 financial year earnings) / 52 weeks x 41.71 weeks (292 days between 13 September 2019 and 30 June 2020) = $54,412.72;
·        $70,173.46 (2021 financial year earnings) / 52 weeks x 10.29 weeks (72 days between 1 July 2020 and 10 September 2020) = $13,886.25, and
·        $54,412.72 + $13,886.25 = $68,298.97 / 52 weeks = $1,313.44 per week.

I find the applicant’s PIAWE to be $1,313.44.

Section 36 payments

The respondent has not included a list of the compensation payments made to the applicant in relation to her 10 September 2020 injury, in its Reply. During the preliminary conference on 9 March 2023, I enquired from Mr Macken as to whether the respondent had made any payments to the applicant pursuant to s 36 of the 1987 Act. He was unable to assist, and I therefore included in order 2 that I made on that date a direction that the respondent lodge a “list of compensation payments made so far to the applicant” with the Commission. Unfortunately, that direction has not been complied with and the list of payments has not been lodged.
I infer from this failure that the respondent has not made any payments to the applicant pursuant to s 36 of the 1987 Act. However, I will grant both parties liberty to apply to the Commission should it be found that some payments were made in this regard.

SUMMARY

I find the applicant’s PIAWE to be $1,313.44.
In accordance with my 20 April 2022 determination, the applicant will be entitled to awards pursuant to ss 36 and 37 of the 1987 Act as a result of her incapacity for work between
5 August 2021 and 28 February 2022, because of the personal injury that she sustained on 10 September 2020 arising out of or in the course of her employment with the respondent, and to which that employment was a substantial contributing factor to the injury.
As I have assumed that the applicant did not receive any payments pursuant to s 36 of the 1987 Act prior to 5 August 2021, she will be entitled to be compensated pursuant to that section until 3 November 2021. She will then be entitled to be compensated pursuant to s 37 of the 1987 Act until 28 February 2022.
In accordance with my finding in my 20 April 2022 determination that the applicant has a current work capacity and was able to earn $772.60 per week in suitable employment, she is to be compensated pursuant to s 36(2) of the 1987 Act, and the relevant weekly amount that she will be awarded between 5 August 2021 and 3 November 2021 will be $475.17 ($1,313.44 x 95% - $772.60).

In accordance with my finding in my 20 April 2022 determination that the applicant has a current work capacity and was able to earn $772.60 per week in suitable employment, she is to be compensated pursuant to s 37(3) of the 1987 Act (as she had not returned to work), and the relevant weekly amount that she will be awarded between 4 November 2021 and
28 February 2022 will be $278.15 ($1,313.44 x 80% - $772.60).
Liberty is to be granted to either party to apply within 28 days should the applicant have received any payments pursuant to s 36 of the 1987 Act prior to 5 August 2021.

[2023] NSWPIC 147

6 April 2023