Deitz v Macarthur Fresh Wholesalers Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Deitz v Macarthur Fresh Wholesalers Pty Ltd [2025] NSWPIC 345
APPLICANT:	Stephen Deitz
RESPONDENT:	Macarthur Fresh Wholesalers Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	17 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; likely to continue; current weekly earnings; incapacity; Legislation referred to section 38(3)(c); clause 8 of schedule 3 ; cases applied Roberts v University of Sydney; Holmes v Central Coast Council; Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated; Kooragang Cement Pty Ltd v Bates; Held – the applicant is entitled to weekly compensation pursuant to section 38 ;the respondent to pay the applicant.
DETERMINATIONS MADE:	1. That the applicant is entitled to weekly compensation pursuant to s 38 of the Workers Compensation Act 1987 (1987 Act). 2. The respondent to pay the applicant pursuant to s 38(7)(a) of the 1987 Act: (a) $478 per week from 17 January 2025 to 31 March 2025, and (b) $486 per week from 1 April 2025 to date and continuing subject to indexation.

STATEMENT OF REASONS

BACKGROUND

Mr Stephen Deitz (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he pleads that he sustained injury to his right shoulder on 22 July 2022 when he fell from the back of a truck to the road whilst in the course of his employment with Macarthur Fresh Wholesalers Pty Ltd (respondent).
There is no dispute in respect to injury.
The applicant seeks weekly compensation pursuant to s 38 of the Workers Compensation Act 1987 (1987 Act) from 17 January 2025 ongoing.
The parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) indexed at $1,560 as at 17 January 2025 and $1,570 indexed as at 1 April 2025.

On 22 July 2022 the applicant went into the back of the truck which he was driving to move a pallet of stock from the front of the truck to the back so that he could access it for unloading through the open back door. It was raining and as he was getting down from the back of the truck, his foot slipped off the edge and he fell approximately 1 to 1.5m onto the road, landing on his right shoulder.
The applicant was diagnosed with a full-thickness tear of the rotator cuff. The applicant underwent surgery to the shoulder on 20 September 2022 at the hands of Dr Jay Dave, orthopaedic surgeon.
Following the shoulder surgery he had physiotherapy. On 23 February 2023 a further MRI scan of his right shoulder was performed and on 19 September 2023 further surgery was performed on the shoulder by Dr Dave.
On 21 June 2024 the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) (work capacity decision) which advised the applicant that the respondent believed that he could work eight hours per day, three days per week. That the vocational options of Courier, Product Assembler and Warehouse Administrator had been identified as suitable employment and that he had been assessed as being able to earn $768 per week as a Medical Courier. As a result, the applicant’s payments of weekly compensation were to be reduced to $456 per week from
2 October 2024.
On 12 November 2024 the applicant was advised that he would not be eligible to payments of weekly compensation from 17 January 2025 as pursuant to s 38 of the 1987 Act he had not been assessed as indefinitely unable to undertake future work to increase his earnings.
It is the applicant’s evidence at [30] of his statement made on 18 March 2025 that following sustaining injury he managed to find employment with Affordable Asphalt, a construction company, on 2 October 2024 working light duties, including paperwork, administration, and traceability duties, on a casual basis. At [31] that his current employer has been very accommodating with respect to his workplace injury. At [36] that his “job is casual, and the hours I work depend on my employer's needs. As an employee, I cannot guarantee my working hours although my current employer assures me a minimum of 24 hours per week. My current employer typically assigns shifts to me with 24 hours' notice. However, due to the outdoor nature of the work, tasks may be cancelled in bad weather.”
It is the applicant’s evidence at [6] that he left school after completing year 10, at [7] that he does not have any trade or other qualifications and at [8]-[9] that prior to commencing with the respondent he had worked in truck driving and labouring roles. That he worked as a truck driver for the respondent commencing in late 2021. It is the applicant’s evidence at [12] that his work duties with the respondent were physically demanding and involved constant lifting of heavy boxes (loading and unloading) throughout each shift. That he manually lifted and moved up to 2 tonnes worth of stock each day.
Ms Kristina Vidaic (who has qualification in exercise physiology and physiotherapy) of Acumen Health in a Functional Capacity Evaluation Report dated 21 February 2024 concluded that the applicant does not have the capacity to perform his pre-injury duties or hours as a Delivery Driver. With ongoing treatment, it was anticipated that the applicant’s range of motion and strength in his right arm would continue to improve, however it was unlikely that he would be able to return to his pre-injury role. It was expected based on the diagnosis and demonstrated capacity, that with appropriate treatment such as physiotherapy and potentially a transition to exercise physiology, that the applicant may be able to return to full-time work in alternative employment which does not involve repetitive heavy manual labour. At the time of the assessment the applicant had been assessed with a capacity to commence with eight hours per day, three days per week on light work.
Dr Magdy Ibrahim in response to a questionnaire from Acumen Health on 23 April 2024 approved the positions of Courier – light items (Pathology/medical courier), Delivery Driver – light items with a maximum of 5kg per item, Transport Dispatching and Receiving Clerk, Warehouse Administrator and Sales Assistant.
The applicant relies on the opinion of Dr James Bodel, orthopaedic surgeon, who provided two forensic medical reports to the applicant dated 16 September 2024[1] having examined the applicant on 11 September 2024. In the opinion of Dr Bodel the applicant is not fit to return to truck driving or delivery work “or anything that requires him to use the right arm in a strenuous or repetitive manner.”[2] In the opinion of Dr Bodel the prospects of the applicant returning to work were very poor and for all intents and purposes, he is totally and permanently incapacitated from work which he has appropriate levels of education, physical fitness, training and experience. To the applicant’s credit he has managed to obtain work and return to employment.
[1] ARD pp. 20-31.
[2] ARD p. 22.
Dr Bodel did not indicate that the applicant’s condition was likely to improve in respect to his vocational capacity. However, Dr Bodel did note that the applicant’s treating orthopaedic surgeon, Dr Dave, had indicated that the only viable treatment option “at some later stage to undertake a reverse total shoulder replacement.” Dr Bodel observed however, that whilst
[3] ARD p. 24.
Dr Dave indicate that this is the most reliable surgical procedure to relieve the applicant’s pain, it would not give any significant improvement in range of motion.[3]
Dr Jay Dave, the applicant’s shoulder surgeon, reported to Dr Ibrahim on 17 March 2025 that a shoulder replacement may be considered in approximately five years.[4] Dr Dave considered the applicant unsuitable at this stage for a reverse shoulder replacement due to his relatively young age. In Dr Dave’s opinion, even with the shoulder replacement surgery the applicant would not be fit to return to his pre-injury occupation.[5]
[4] Reply p. 19.
[5] Reply p. 20.
The Healthy Body Company in a response to a questionnaire on 11 March 2025 indicated an increase work capacity to 34-38 hours per week by the end of next “AHTR Plan.”
Zachary Brown, exercise physiologist, at Brown and Ross Exercise Physiology reported on 29 April 2025[6] that the applicant was able to work up to full hours within his functional restrictions with a new employer in a new role, taking rests when required.
[6] Reply pp. 21-24.
Payslips from the applicant’s current employer, Affordable Asphalt, evidence that intermittently the applicant has worked in excess of the 24 hours per week which has been certified in the Certificates of Capacity. In particular for the period 30 January 2025 to
[7] ARD   p. 54.
[8] ARD   p. 59.
[9] ARD   p. 60.
[10] AALAD p. 6.
[11] AALAD p. 8.
[12] AALAD p. 9.
5 February 2025 the applicant worked 38 hours,[7] for the period 6 March 2025 to 12 March 2025 the applicant worked 35 hours,[8] for the period 13 March 2025 to 19 March 2025 the applicant worked 36 hours,[9] for the period 10 April 2025 to 16 April 2025 the applicant worked 38 hours,[10] for the period 1 May 2025 to 7 May 2025 the applicant worked 34 hours[11] and for the period 8 May 2025 to 14 May 2025 the applicant worked 44 hours.[12]

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) as to whether the applicant has an entitlement under s 38(3)(c) of the 1987 Act; and
(b) as to the degree of any incapacity suffered – s 33 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 20 June 2025. Mr Ross Stanton, counsel, instructed by Gerard Malouf Partners, appeared for the applicant, who was present. Mr Djordje Pecelj, counsel, instructed by Rankin Ellison Lawyers, appeared for the respondent. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Lodge Additional Documents lodged on behalf of the applicant dated 16 June 2025 (AALAD).

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Section 38(3)(c) of the 1987 Act

The respondent does not dispute that the applicant satisfies s 38(3)(a) and (b) of the 1987 Act. In the respondent’s submission the relevant issue is whether the applicant satisfies s 38(3)(c) which would entitle the applicant to weekly compensation pursuant to s 38 after the second entitlement period. The respondent disputes that the applicant satisfies s 38(3)(c). In the respondent’s submission for the purposes of s 38(3)(c) the applicant is capable of earning substantially more. I do not accept the respondent’s submission that the applicant does not satisfy the requirements of s 38(3)(c) for the following reasons.
Section 38 of the 1987 Act states:
“38   Weekly payments after second entitlement period (after week 130)
(1)A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a)the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A)A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4)An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a)         during the last 52 weeks of the second entitlement period, and
(b)         thereafter at least once every 2 years.
Note.
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5)An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6)The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7)The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.
(8)A worker’s entitlement to compensation under this section may be reassessed at any time.”
Section 38(3)(c) requires the worker to be assessed as “being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.”
In Roberts v University of Sydney [2021] NSWWCC 25 (Roberts) Arbitrator Harris (as he then was) considered the meaning of “indefinitely” for the purposes of s 38(3)(c) stating:
“[99] I agree with the applicant’s submission that the meaning of ‘indefinitely’ is akin to an unknown or non-specific period.
[100] I also agree with part of the respondent’s submission that the meaning relates to the ‘foreseeable future’, although the meaning is probably more restrictive than that because the satisfaction of the concept requires incapacity of an indefinite nature rather than just in the foreseeable period.
...
[103] The meaning of ‘indefinitely’ is not the same as ‘definitely’. ‘Indefinitely’ does not mean ‘permanent’, although this was only indirectly suggested by the respondent when it submitted that it meant the same as ‘maximum medical improvement’.”
Member Wynyard adopted the interpretation of Arbitrator Harris in Holmes v Central Coast Council [2022] NSWPIC 70 (Holmes) as did President’s delegate McAdam (as he then was) in Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated [2023] NSWPIC 36 (Houghton). I also agree with and adopt the interpretation in Roberts.
In considering s 38(3)(c) it is also necessary to consider the definition of “current weekly earnings”. Clause 8 of Sch 3 of the 1987 Act provides the following definition of “current weekly earnings”:
“8   Meaning of ‘current weekly earnings’
Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a)  the worker’s actual gross earnings in respect of that week,
(b)  the weekly amount that the worker is able to earn in suitable employment.”
In the respondent’s submission the applicant does not satisfy s 38(3)(c) as he is capable of undertaking further additional employment or work that would increase the applicant’s current weekly earnings.
I do not accept the respondent’s submission. It is irrelevant to the operation of s 38(3)(c) that the applicant may have a current capacity to undertake further additional actual work. What s 38(3)(c) is contending with is not the workers capacity at the time of the assessment but prospective changes in the applicant’s capacity to “undertaking further additional employment or work that would increase the worker’s current weekly earnings.”
That a worker may have a capacity for work that is not reflected in his actual gross earnings is taken into consideration in the definition of “current weekly earnings”. The “current weekly earnings” being the “greater amount” of the workers “actual gross earnings” or the “amount that the worker is able to earn in suitable employment.” Therefore, the fact that that a worker at the time of assessment may be able to earn more than they are actually earning does not “increase the worker’s current weekly earnings” as that is taken into account in the definition of “current weekly earnings” under (b) of the definition.
Is the applicant incapable and likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase his current weekly earnings? Before considering this question, it is necessary to consider when the assessment is to be carried out.
In the respondent’s submission that assessment is to be carried out as of 12 November 2024, the date on which the applicant was advised that his weekly compensation payments would be terminated from 17 January 2025. In the applicant’s submission the assessment is conducted at the present time. I accept the applicant’s submission. In Roberts Arbitrator Harris stated when considering when the test in s 38(3)(c) is applied in the context of an ongoing claim for weekly compensation:
“93. I also do not agree with the applicant’s submission that satisfaction of the test in s 38(3)(c) is only undertaken at the time of the notice.
94. The applicant referred to the decision of Clarke in support of that submission. The error with that submission is that the worker in that case was seeking an order for weekly compensation in respect of a past period, some 12 months prior to the order of the Commission. Accordingly, the operation of the s 38 entitlement was then discussed in the context of a period prior to the date of the order.
95. The applicant is seeking an order of weekly compensation over a period on an ongoing basis. In those circumstances a worker is required to satisfy the test over the entire period and not only when the notice was given. Accordingly, if a worker cannot satisfy the test for part of the period, then that portion of the claim would fail because a necessary precondition is not satisfied.
96. That interpretation is also consistent with the ongoing nature of the requirement provided by s 38(3)(b), subject to the operation of s 40, that a worker must be in employment for at least 15 hours per week and at least the minimum value as prescribed by the regulations.
97. This interpretation is also consistent with s 38(8) of the 1987 Act which provides that the assessment under s 38 “may be reassessed at any time”. That sub-section indicates that satisfaction of the pre-conditions in s 38(3) may fluctuate over time.”

In my view the evidence supports that the applicant is incapable, and likely to continue indefinitely to be incapable of undertaking further additional employment or work that would increase his current weekly earnings. There is no evidence that the applicant will ever be able to return to his pre-injury duties even with the shoulder replacement surgery.
It was submitted on behalf of the respondent that the applicant’s payslips attest to his ability to work in excess of the hours certified in the Certificates of Capacity and as assessed by
Ms Vidaic in the Functional Capacity Evaluation Report dated 21 February 2024. It was further submitted on behalf of the respondent that the applicant’s actual earnings with Affordable Asphalt do not represent the applicant’s actual capacity for work as the applicant’s hours are based on the needs of his employer.
As previously discussed, the applicant’s current capacity is irrelevant to the operation of s 38(3)(c) as this is taken into consideration in assessing the applicant’s “current weekly earnings”.
The respondent also referred to the response from the Healthy Body Company to a questionnaire on 11 March 2025 which indicated an increase work capacity to 34-38 hours per week by the end of next “AHTR Plan.” I give little weight to this evidence. The response to the questionnaire provides no explanation or reasoning for the opinion. It does not explain how or why the applicant’s capacity would increase in terms of the hours that the applicant could work. It also does not identify the nature of the occupations which the applicant would be able to perform 34 to 38 hours per week and whether those occupations are in fact “suitable employment” as defined by s 32A of the 1987 Act. There is no “AHTR Plan” in evidence and nothing further from the Healthy Body Company in evidence. It is not known when the “AHTR Plan” was to end or what the progress was. We also do not know who the author of the opinion was and what their qualifications were as there is not recorded on the response.
We do however know from the applicant’s payslips that the applicant has on occasions since 11 March 2025 worked in excess of 34 hours per week for his current employer. There is no evidence from the Healthy Body Company that there is to be any future change (from this point in time) in the applicant’s capacity to undertake further additional employment or work that would increase his current weekly earnings.
The respondent also relied on the report of Mr Brown, of Brown and Ross Exercise Physiology dated 29 April 2025. Again, this report provides an assessment of the applicant’s current functional capacity. Whilst further small improvements in the applicant’s functional capacity were anticipated no opinion was provided as to whether or how those small improvements would affect the applicant’s work capacity.
Whilst the respondent also relied on Dr Ibrahim’s approval of the occupations of Courier – light items (Pathology/medical courier), Delivery Driver – light items with a maximum of 5kg per item, Transport Dispatching and Receiving Clerk and Warehouse Administrator and Sales Assistant, this approval was given on 23 April 2024 and does not indicate any future change in capacity that would increase the applicant’s “current weekly earnings”.
For the above reasons I am of the view that the evidence supports that the applicant is incapable and is likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase his current weekly earnings

Capacity/incapacity

The applicant bears the onus of proving incapacity resulting from the accepted injury on the balance of probabilities. What is required is a commonsense evaluation of the causal chain.[13] Once the applicant has proved an incapacity the respondent bears the onus of proving the residual capacity.
[13] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note.
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Clause 9 of Schedule 3 of the 1987 Act defines “current work capacity” and “no current work capacity” and states:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
There is no dispute that the applicant is incapacitated for his pre-injury duties. There is no evidence which supports the applicant having a current capacity to perform his pre-injury duties.
In respect to the issue of capacity the respondent submitted that it relied on the work capacity decision dated 21 June 2024. In the respondent’s submission, based on the work capacity decision, the applicant has the capacity to earning $768 per week in suitable employment. In the respondent’s submission based on the agreed indexed PIAWE of $1,570 applying s 38(7)(a) the applicant would have an entitlement to weekly compensation at the rate $488 per week ($1,570 x 0.8 = $1,256 - $768 = $488). In the respondent’s submission a deduction would then be made for amounts earned in the applicant’s current employment in excess of $768 per week.
It is the applicant’s evidence that his current employer has been very accommodating with respect to his workplace injury. That his job is casual, and the hours he works depends on the needs of his employer. Also, due to the outdoor nature of the work, tasks may be cancelled in bad weather.
Ms Vidaic in the Functional Capacity Evaluation Report dated 21 February 2024 records that following a functional capacity evaluation on 21 February 2024 the applicant was assessed to have the capacity to commence with eight hours per day, three days per week at light work with the applicant demonstrating a capacity to lift 7kg bilaterally from floor to waist and 4kg from waist to chest level with his right hand, unilaterally carry 4kg with his right had for one minute, push with his right hand 4.55kgF and pull with his right hand 11.2kgF. The applicant was to avoid overhead activity with his right arm.
The Functional Capacity Evaluation Report does not actually identify any suitable vocations for the applicant but rather recommends that an updated vocational assessment be conducted to identify suitable alternative employment options. No such updated vocational assessment is in evidence.
In evidence is the response by Dr Ibrahim to a questionnaire from Acumen Health dated
23 April 2024. In the doctor’s opinion the applicant had a maximum capacity to return to full hours but with limited use of the right shoulder.
It is unclear whether Dr Ibrahim was of the opinion that the applicant could perform full hours in the roles which the doctor was then asked to approve or reject as suitable as the questions were put separately and the doctor’s response that the applicant could work full hours is given in response to a question about the applicant’s maximum capacity and not in response to the individual roles.
The individual roles identified and put to the doctor as potential suitable occupations presumably were derived from Vocational Assessment Report and Labour Market Analysis authored by Acumen Health dated 23 April 2024 which is referred to as an attachment to the work capacity decision, but which is not in evidence.
Presumably the roles which were put to Dr Ibrahim as potential suitable occupations were identified on the basis of the functional capacity assessment which assessed a capacity to work 8 hours per day, 3 days per week on light work. Therefore it was not necessary to ask Dr Ibrahim to comment on the hours which the applicant could work in the identified occupations. Dr Ibrahim approved the roles of Courier – light items (pathology/medical courier), Delivery Driver – light items, Transport Dispatching and Receiving Clerk, Warehouse Administrator and Sales Assistant. Whilst the doctor was provided with brief descriptions of the functional requirements of the roles the actual weights involved were not provided.
In any event on the basis of the functional assessment performed by Ms Vidaic the applicant has only been assessed as able to work in the roles approved by Dr Ibrahim eight hours per day, three days per week which according to the work capacity assessment the applicant could earn $768 per week.
The Functional Capacity Assessment Report and the questionnaire completed by Dr Ibrahim is of little assistance as significant pieces of evidence as to the identification of the suitable roles are not in evidence and the applicant is, with his current employer, working in excess of the 24 hours per week assessed by Ms Vidaic.
I am of the view, as submitted by Mr Stanton on behalf of the applicant, that the best available measure of the applicants work capacity is his actual average earnings with his current employer. The hours worked are similar to those assessed by Ms Vidaic. The applicant has a limited education, has no trade or other qualifications, has an employment history in labouring and truck duties which are no longer suitable given his injury. To the applicant’s credit he has managed to find light suitable duties employment which he is able to perform for an employer who has been very accommodating with respect to his workplace injury.
Whilst it is the applicant’s evidence that his hours are determined by the needs of his employer, and he has at times worked up to and in excess of 38 hours per week the functional assessment which the respondent relies upon only assessed the applicant as capable of working 24 hours per week and there is no assessment assessing that the applicant could work full-time duties in a real job or even that he would be able to work full-time duties in his current position on an ongoing and continuous basis. The applicant has proved incapacity; it is the respondent that bears the onus of proving the extent of the residual capacity.
In any event the residual earning capacity which the respondent submitted of $768 is less than that submitted by the applicant of $770 per week on the basis as the applicant’s average weekly earnings with his current employer. For the above reasons I accept the respondent’s submission that the applicant has a capacity to earn of $770 per week. As this is taken as an average it is not necessary, in respect to the past payments of weekly compensation, to reduce the amount of weekly compensation in respect to those weeks when the applicant has earned in excess of $770 or similarly to increase the weekly compensation payable when the applicant has earned less than $770 in any given week.
The parties agreed the applicant’s PIAWE indexed at $1,560 as at 17 January 2025 and $1,570 indexed as at 1 April 2025. I calculate the applicant’s entitlement weekly compensation pursuant to s 38(7)(a) of the 1987 Act as follows:
(a) $478 per week from 17 January 2025 to 31 March 2025, and
(b) $486 per week from 1 April 2025 to date and continuing subject to indexation.

[2025] NSWPIC 345

17 July 2025