Graham v Lutheran Aged Care Albury
[2024] NSWPIC 637
•13 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Graham v Lutheran Aged Care Albury [2024] NSWPIC 637 |
| APPLICANT: | Linda Graham |
| RESPONDENT: | Lutheran Aged Care Albury |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 13 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for one day of incapacity to attend a medical appointment; worker now earning more than pre-injury average weekly earnings; sections 9, 33, 36 and clause 9 of Schedule 3; Held – award for the respondent for one day of incapacity. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award in favour of the respondent in respect of the claim for compensation on 10 May 2024. |
STATEMENT OF REASONS
BACKGROUND
Linda Graham suffered an injury to her left shoulder on 15 March 2021 when she was working in an aged care facility operated by Lutheran Aged Care Albury (Lutheran). Despite undergoing treatment, Ms Graham had little if any time off work since the injury. She resigned from Lutheran in January 2023 and commenced working for R & R Electrical Contractors as an administration assistant. Ms Graham earns more in her current employment than she earned at Lutheran.
Ms Graham claimed compensation for the cost of surgery to her left shoulder and for one day of compensation on 10 May 2024 when she attended a medical appointment. It was necessary for her to take leave on that day because Ms Graham lives in Albury and Dr Chua’s rooms are in Melbourne.
The issue in dispute is whether she is entitled to compensation for that day. Lutheran’s insurer said in an email dated 13 June 2024 that it is unable to pay compensation for that day because Ms Graham’s current weekly earnings are higher than her pre-injury average weekly earnings (PIAWE). The consequence, if compensation is not paid for that day, is that Ms Graham may not have the right to recover compensation for medical and related expenses in the future because of the operation of s 59A of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The claim was listed for preliminary conference on 18 October 2024. After conciliation, Lutheran agreed to pay the costs of and incidental to the surgery proposed by Dr Chua, being left shoulder arthroscopic subacromial decompression and biceps tenodesis. The agreement was made regardless of the date on which surgery is undertaken and of the effect of s 59A of the 1987 Act.
That agreement has the result that Ms Graham will be compensated for the costs of the surgery and subsequent treatment and s 59A(3) means that weekly compensation will be paid for the period of incapacity following the surgery.
I directed the parties to provide lists of any authorities on which they relied. No lists were provided.
At the conciliation conference and arbitration hearing on 25 October 2024, Mr Loukas appeared for Ms Graham, instructed by Ms Sutcliffe, and Ms Goodman appeared for Lutheran, instructed by Ms Blackman and Mr Bruner-Evans of EML.
Lutheran sought to argue that Ms Graham was not incapacitated on 10 May 2024, even though her general practitioner had provided a certificate of capacity which said that she was. After conciliation, it was agreed that the issue of capacity had never been raised in a notice issued on behalf of Lutheran under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and the issue was not argued, subject to what appears below.
It was agreed that Ms Graham’s PIAWE, indexed, were $839 and that 95% of that sum is $796.
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 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
The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
An undated list of payments shows that the only weekly compensation paid was for about a week in November 2022. Significant treatment expenses were paid, including medical and travel expenses in May 2024.
On 10 May 2024, Ms Graham saw Dr Chua, orthopaedic surgeon in Melbourne. He noted that the MRI scan from 2022 showed limited changes apart from a possible partial tear of the subscapularis and mild bursitis. He considered that a significant part of Ms Graham’s pain came from the biceps and recommended a diagnostic injection to the biceps sheath. Dr Chua noted in his report dated 28 June 2024 that the injection provided almost immediate, complete resolution of her symptoms so that he considered that a biceps tenodesis would provide a permanent solution and that arthroscopic decompression should also be performed.
Ms Graham’s payslip for the fortnight from 29 April 2024 to 12 May 2024 shows that her gross pay was $2,185.24 which included one day of holiday pay of $212.80.
On 11 June 2024, Ms Graham wrote to the insurer seeking compensation for 10 May 2024 and attaching the certificate of capacity. She said:
“I understand that you have previously indicated that my medical expenses will cease in or about November 2024. In light of the above payment, could you please confirm that there will be no cessation of my medical expenses in November 2024, but rather a further two years minimum will be paid from 10 May 2020 for pursuant to Section 59A.”
The case manager responded by email on 13 June 2024:
“… I have spoken with Lisa and my Technical Specialist and investigated into your request for wage loss and reimbursement.
As your PIAWE are calculated weekly, and your new income is higher than your PIAWE we cannot pay for the one day as you had no wage loss that affected your weekly income to drop below your PIAWE of $796.00. Since there is no wage loss your medical cessation date still stands 21/11/2024.
We can reimburse you for your travel to and from appointments.
…”
Lutheran’s insurer issued a s 78 notice on 18 July 2024 disputing liability for the surgery on the basis of a report by Dr Gorman, pain specialist. That dispute was resolved at the preliminary conference.
SUBMISSIONS
The submissions made by counsel were recorded and a summary appears below.
Mr Loukas said that logically, Ms Graham should be compensated for a day of incapacity when incapacity was not in dispute and she was required for seven and a half hours to attend a medical appointment. He said she was incapable of performing her regular work on account of an accepted injury. He said that ss 33 and 36 of the 1987 Act speak in terms of incapacity and that one should not be bamboozled by references to weekly compensation, noting that there are many cases in which workers are compensated pro rate when unable to work for discrete periods during a week.
The starting point, Mr Loukas said, is s 36 which provides that a worker who has no current work capacity is entitled to compensation at the rate of 95% of PIAWE. As Ms Graham was incapacitated for that day, she is entitled to compensation, regardless of the fact that she now worked elsewhere and earned more money. He said that the principal fact is that Ms Graham was unable to earn on 10 May 2024 so should be compensated for that day.
Ms Goodman said that Lutheran’s basic argument was that Ms Graham is not entitled to be paid for the relevant day because the formula for calculating any entitlement specifically refers to a week. In the week in which the relevant day falls, Ms Graham in fact earned more than 95% of her PIAWE. Ms Goodman took me to the relevant pay slip, summarised above. When the day of annual leave which Ms Graham took to attend the appointment is deducted, Ms Graham earned $879.82 and the indexed PIAWE is $839. The calculation in s 36 is expressed in weekly terms and when the relevant calculation is made there is no loss.
Ms Goodman stressed that a worker is entitled to be paid in accordance with the legislation and the only section which deals with the entitlement is s 36. There is some assistance in s 33 and in Sch 3 cl 9 of the 1987 Act which defines current work capacity and no current work capacity by reference to the weekly amount a worker is able to earn.
In reply, Mr Loukas took me to the words of s 36 and said that I was only required to consider sub-s (1) which provided that the entitlement of a worker with no current work capacity is 95% of PIAWE. Though the section refers to a weekly payment, the reference to “weekly” should be disregarded and I should focus on the relevant day only. He said it is a matter of common sense and logic that a worker should be paid pro rata.
FINDINGS AND REASONS
I am satisfied – there being no relevant dispute – that Ms Graham was totally incapacitated for work on 10 May 2024 when she attended the appointment with Dr Chua in Melbourne.
Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation “in accordance with this Act”.
Section 33 of the 1987 Act provides:
“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.”
I accept, as Mr Loukas submitted, that compensation in respect of total may be paid pro rata where a worker is incapacitated for less than a week. However, compensation must be paid “in accordance with this Act” and s 33 provides that a compensation is a weekly payment.
Section 36 sets out how the compensation payable is calculated:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% 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.”
Schedule 3 contains the relevant definitions with respect to earnings for the purposes of weekly compensation. It includes cl 9 to which Ms Goodman referred:
“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.”
Ms Graham has had very little time off work as a result of the injury, despite undergoing treatment and investigations. Since the injury, she has changed jobs to work in an administrative role and now earns more than if she had remained working for Lutheran. In her case, suitable employment returns more, not less than, her pre-injury earnings.
Section 36(1) refers to a weekly payment of compensation and s 36(2) explains the way it is calculated. Reading the section as Mr Loukas submitted, requires me to ignore the word “weekly” in sub-s (1). In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)(Alcan) [1] Hayne, Heydon, Crennan and Kiefel JJ said:
“... the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
[1] (2009) 239 CLR 27 at 46.
The starting point is “the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose”.[2]
[2] French CJ in Alcan at [36]
In Adco Constructions Pty Limited v Goudappel,[3] the High Court said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the WCA's remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified. ...”
[3] [2014] HCA 18 at [29].
The purpose of s 36 is to prescribe the rate at which compensation is payable. The calculation is made by reference to weekly amounts. Unfortunately, the calculation in s 36(2) precludes payment in respect of Ms Graham’s incapacity on 10 May 2024.
I make an award in favour of the respondent in respect of the claim for compensation on 10 May 2024.
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