Comlekci v Fairfield City Council - [2022] NSWPIC 175

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Comlekci v Fairfield City Council [2022] NSWPIC 175
APPLICANT:	Naciye Comlekci
RESPONDENT:	Fairfield City Council
MEMBER:	Gaius Whiffin
DATE OF DECISION:	21 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claims for injuries to right hand/wrist; consideration of factual material, medical reports and other treatment records; consideration of physiological change requirement under section 4 of the Workers Compensation Act 1987 (1987 Act); Castro v State Transit Authority (NSW), Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Galluzzo v Commonwealth Bank of Australia considered; consideration of substantial contributing factor requirement under section 9A of the Workers Compensation Act 1987; Dayton v Coles Supermarkets Pty Ltd considered; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the 1987 Act and ‘suitable employment’ under section 32A of the 1987 Actconsideration of documentation required to find pre-injury average weekly earnings; Held - award in favour of the applicant for medical expenses; applicant’s current work capacity assessed as equivalent to the Fair Work Act 2009 (Cth) minimum wage; insufficient earnings information provided to assess pre-injury average weekly earnings and direction made for more information and submissions to be provided.
DETERMINATIONS MADE:	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).
ORDERS MADE:	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…

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: [2022] NSWPIC 175
Decision Date: 21 April 2022

CaseChat Overview and Summary

In the matter of Comlekci v Fairfield City Council, the applicant sought compensation for injuries to their right hand and wrist sustained during employment. The dispute was heard and determined by the relevant Australian court, which examined the merits of the applicant's claims in light of statutory provisions and relevant case law. The central legal issues involved the interpretation and application of several sections of the Workers Compensation Act 1987, including the physiological change requirement under section 4, the substantial contributing factor requirement under section 9A, and the assessment of the applicant's current work capacity and suitable employment under clauses 9 and 32A, respectively.

The court's reasoning entailed a meticulous examination of the medical reports, treatment records, and other factual material presented. It considered precedents such as Castro v State Transit Authority (NSW), Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear, and Galluzzo v Commonwealth Bank of Australia to elucidate the physiological change requirement. Furthermore, the court evaluated the substantial contributing factor requirement by referencing Dayton v Coles Supermarkets Pty Ltd. The applicant's current work capacity was assessed against the Fair Work Act 2009 minimum wage, and the court found that insufficient information was provided to determine the pre-injury average weekly earnings. Consequently, the court awarded the applicant compensation for medical expenses but required further documentation and submissions to assess the pre-injury earnings.

In summary, the court ruled in favour of the applicant for medical expenses, acknowledging the injuries sustained. The assessment of the applicant's current work capacity was aligned with the Fair Work Act minimum wage, but the lack of sufficient pre-injury earnings information led to a direction for more detailed submissions and documentation. This decision underscores the importance of comprehensive evidence in workers' compensation claims, particularly concerning the physiological and contributing factors as well as the evaluation of work capacity and earnings.

Orders