Hawthorn v State of New South Wales

[2021] NSWPIC 117

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Hawthorn v State of New South Wales [2021] NSWPIC 117

APPLICANT:

Kelly Hawthorn

RESPONDENT:

State of New South Wales

MEMBER:

12 May 2021

DATE OF DECISION:

Mr Brett Batchelor

CATCHWORDS:

WORKERS COMPENSATION- Application by applicant to amend Certificate of Determination in proceedings (the 2020 proceedings) to reflect correct PIAWE; the agreement between parties as to the PIAWE recorded in the Statement of Reasons and Certificate of Determination in the 2020 proceedings was in respect of an incorrect PIAWE; Held- respondent consents to amendment sought by the applicant; Certificate of Determination in current proceedings issued to order the respondent to pay the applicant weekly benefits calculated with reference to the correct PIAWE.

DETERMINATIONS MADE:

1.     Clause [5] of the Certificate of Determination in proceedings number 4300/20 in the former Workers Compensation Commission of New South Wales is revoked and the following clause is issued in its place:

“5. The respondent is to pay the applicant weekly benefits pursuant to the Workers Compensation Act 1987 as follows:

(a)    $2,167.62 per week from 14 November 2019 to 13 February 2020 pursuant to s 36(1) (95% of pre-injury average weekly earnings), and

(b)    $1,825.36 per week from 14 February 2020 to date and continuing pursuant to s 37(1) (80% of pre-injury average weekly earnings).”

STATEMENT OF REASONS

BACKGROUND

1. In proceedings number 4300/20 in the former Workers Compensation Commission of New South Wales (the WCC) between the same parties to the current proceedings (the 2020 proceedings), the Commission issued a Certificate of Determination and Statement of Reasons on 2 November 2020 following an arbitration hearing on 13 October 2020.

2. The Certificate of Determination is as follows:

   “The Commission determines:

   1.     The applicant sustained injury arising out of or in the course of her employment deemed to have occurred on 14 November 2019.

   2.     The applicant’s employment with the respondent was a substantial contributing factor to the injury.

   3.     The applicant suffered total incapacity for work as a result of the injury.

   4.     Since 14 November 2019, the applicant has had no current work capacity.

   5. The respondent is to pay the applicant weekly benefits pursuant to s 60 of the Workers Compensation Act 1987 as follows:

   (a)$1,538.20 per week from 14 November 2019 to 13 February 2020 pursuant to s 36(1), and

   (b)$1,295.30 per week from 14 February 2020 to date and continuing pursuant to s 37(1).

   6. The respondent is to pay the applicant’s medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.”

1. In the current proceedings Kelly Hawthorn (the applicant) seeks amendment of the Certificate of Determination in the 2020 proceedings. In submissions attached to the Generic Form of application commencing the current proceedings, the applicant submits that the rate of the pre-injury average weekly earnings (PIAWE) agreed at $1,619.15 in the 2020 proceedings is incorrect. The applicant notes that there appears to have been an error in relation to the amount of weekly benefits compensation claimed in the Application to Resolve a Dispute commencing the 2020 proceedings.

2. In her submissions in support of the current proceedings the applicant submits that the correct PIAWE in accordance with Sch 3 of the Workers Compensation Act 1987 in relation to injuries sustained after 21 October 2019 should have been determined at $2,281.70.

3. The applicant claims that the Certificate of Determination in the 2020 proceedings should either be amended or an alternate award made in respect of weekly payments as follows:

   “That the Respondent is to pay the Applicant weekly benefits pursuant to the
   Workers Compensation Act as follows:-

   a. $2167.62 gross per week from 14 November 2019 to 13 February 2020

   pursuant to Section 36(1) (95% of PIAWE); and

   b. $1825.36 gross per week from 14 February 2020 to date and continuing

   pursuant to Section 37(1) (80% of PIAWE).”

1. The respondent consents to the amendment of the Certificate of Determination in the 2020 proceedings to reflect the PIAWE of $2,281.70 now claimed by the applicant.

2. The Commission notes a typographical error in [5] of the Certificate of Determination in the 2020 proceedings with the reference to “s 60 of the Workers Compensation Act 1987” therein.

3. On 1 March 2021 the WCC was abolished.[1] This matter comes before me as a member of the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998.  Relevantly, the Arbitrators of the former WCC became non-presidential members of the Personal Injury Commission.

   [1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). 

   [2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

4. Clause [5] of  the Certificate of Determination of the 2020 proceedings is revoked and the Certificate of Determination attached to this Statement of Reasons is issued in its place.

STATEMENT OF REASONS

BACKGROUND

1. In proceedings number 4300/20 in the former Workers Compensation Commission of New South Wales (the WCC) between the same parties to the current proceedings (the 2020 proceedings), the Commission issued a Certificate of Determination and Statement of Reasons on 2 November 2020 following an arbitration hearing on 13 October 2020.

2. The Certificate of Determination is as follows:

   “The Commission determines:

   7.     The applicant sustained injury arising out of or in the course of her employment deemed to have occurred on 14 November 2019.

   8.     The applicant’s employment with the respondent was a substantial contributing factor to the injury.

   9.     The applicant suffered total incapacity for work as a result of the injury.

   10.   Since 14 November 2019, the applicant has had no current work capacity.

   11. The respondent is to pay the applicant weekly benefits pursuant to s 60 of the Workers Compensation Act 1987 as follows:

   (a)$1,538.20 per week from 14 November 2019 to 13 February 2020 pursuant to s 36(1), and

   (b)$1,295.30 per week from 14 February 2020 to date and continuing pursuant to s 37(1).

   12. The respondent is to pay the applicant’s medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.”

1. In the current proceedings Kelly Hawthorn (the applicant) seeks amendment of the Certificate of Determination in the 2020 proceedings. In submissions attached to the Generic Form of application commencing the current proceedings, the applicant submits that the rate of the pre-injury average weekly earnings (PIAWE) agreed at $1,619.15 in the 2020 proceedings is incorrect. The applicant notes that there appears to have been an error in relation to the amount of weekly benefits compensation claimed in the Application to Resolve a Dispute commencing the 2020 proceedings.

2. In her submissions in support of the current proceedings the applicant submits that the correct PIAWE in accordance with Sch 3 of the Workers Compensation Act 1987 in relation to injuries sustained after 21 October 2019 should have been determined at $2,281.70.

3. The applicant claims that the Certificate of Determination in the 2020 proceedings should either be amended or an alternate award made in respect of weekly payments as follows:

   “That the Respondent is to pay the Applicant weekly benefits pursuant to the
   Workers Compensation Act as follows:-

   a. $2167.62 gross per week from 14 November 2019 to 13 February 2020

   pursuant to Section 36(1) (95% of PIAWE); and

   b. $1825.36 gross per week from 14 February 2020 to date and continuing

   pursuant to Section 37(1) (80% of PIAWE).”

1. The respondent consents to the amendment of the Certificate of Determination in the 2020 proceedings to reflect the PIAWE of $2,281.70 now claimed by the applicant.

2. The Commission notes a typographical error in [5] of the Certificate of Determination in the 2020 proceedings with the reference to “s 60 of the Workers Compensation Act 1987” therein.

3. On 1 March 2021 the WCC was abolished.[3] This matter comes before me as a member of the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.[4] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998.  Relevantly, the Arbitrators of the former WCC became non-presidential members of the Personal Injury Commission.

   [3] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). 

   [4] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

4. Clause [5] of  the Certificate of Determination of the 2020 proceedings is revoked and the Certificate of Determination attached to this Statement of Reasons is issued in its place.