Firth v HammondCare - [2022] NSWPIC 630

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Firth v HammondCare [2022] NSWPIC 630
APPLICANT:	Kathryn Firth
RESPONDENT:	HammondCare
Member:	John Isaksen
DATE OF DECISION:	14 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Dispute as to the calculation of the worker’s pre-injury average weekly earnings (PIAWE); whether there was a change of an ongoing nature to the employment arrangement between the worker and the employer which resulted in a financially material change to the worker’s earnings (regulation 8C of the Workers Compensation Regulation 2016); reference to arbitral decisions of Cain v Tamworth Aboriginal Medical Service and Wake v State Emergency Services; Held – there was a change of an ongoing nature to the employment arrangement between the worker and the employer which resulted in a financially material change to the worker’s earnings; calculation made for the relevant earning period and the worker’s PIAWE.
determinations made:	1. There was a change of an ongoing nature to the employment arrangement between the applicant and the respondent on or about 29 June 2020, which resulted in a financially material change to the applicant’s earnings as provided for by Regulation 8C (1) of the Workers Compensation Regulation 2016. 2. The relevant earning period for the calculation of the applicant’s pre-injury average weekly earnings as provided for by Regulation 8C (2) of the Workers Compensation Regulation 2016 is from 29 June 2020 to 6 October 2020. 3. The applicant’s pre-injury average weekly earnings for the purposes of calculating her entitlement to weekly payments of compensation are $809.61.

STATEMENT OF REASONS

BACKGROUND

Kathryn Firth, the applicant in these proceedings, sustained an injury to her right ankle on 6 October 2020 while employed as a Specialised Dementia Carer Grade One with the respondent, HammondCare.
The respondent has admitted liability for this injury. However, there is a dispute between Ms Firth and the respondent as to the calculation of her pre-injury average weekly earnings (PIAWE).
Ms Firth claimed in the Application to Resolve a Dispute (ARD) that her PIAWE is $984.80. That was amended to $957.77 in subsequent written submissions which have been filed and served on behalf of Ms Firth. That calculation is based upon 31 weeks of her employment with the respondent, which commences on 9 March 2020 and continues until her injury on 6 October 2020.
The respondent contends that there was a financially material change to Ms Firth’s earnings on 29 June 2020 when Ms Firth’s position with the respondent was re-classified from Specialised Dementia Carer New Entrant to Specialised Dementia Carer Grade One and because her hourly rate increased from $21.11 to $22.85. The calculation made by the respondent of Ms Firth’s PIAWE from 29 June 2020 to 6 October 2020 is $809.61.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) the calculation of Ms Firth’s PIAWE (Schedule 3, cl 2 of the Workers Compensation Act1987 (the 1987 Act) and regulation 8C of the Workers Compensation Regulation (the 2016 Regulation).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties…

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.

Continue reading Firth v HammondCare

Details

AGLC: Firth v HammondCare [2022] NSWPIC 630
Case: [2022] NSWPIC 630
Decision Date: 14 November 2022

CaseChat Overview and Summary

The case of Firth v HammondCare involved a dispute regarding the calculation of a worker's pre-injury average weekly earnings (PIAWE) under the Workers Compensation Regulation 2016. The dispute arose between the injured worker, Firth, and the employer, HammondCare, with the matter being heard and determined in an Australian court. The primary issue before the court was whether there had been a change of an ongoing nature to the employment arrangement between Firth and HammondCare, which resulted in a financially material change to Firth's earnings.

The court was tasked with interpreting and applying regulation 8C of the Workers Compensation Regulation 2016, which pertains to the adjustment of pre-injury earnings in cases where there has been a change in the employment arrangement. The court considered relevant arbitral decisions, such as Cain v Tamworth Aboriginal Medical Service and Wake v State Emergency Services, to guide its interpretation and application of the regulation. The central question was whether the change in the employment arrangement was of an ongoing nature and if it resulted in a financially material change to Firth's earnings.

The court found that there had indeed been a change of an ongoing nature to the employment arrangement between Firth and HammondCare, which resulted in a financially material change to Firth's earnings. The court considered the evidence and the specific circumstances of the case, including the nature and extent of the change in employment arrangements. Based on this finding, the court proceeded to make the necessary calculation for the relevant earning period and determined Firth's PIAWE accordingly.

The final orders of the court included the determination of Firth's PIAWE based on the calculation made for the relevant earning period, taking into account the change of an ongoing nature to the employment arrangement. The court's decision provided clarity on the application of regulation 8C and the criteria for identifying a materially significant change in employment arrangements under the Workers Compensation Regulation 2016.

Orders