Hazara v VSS Painting Service Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hazara v VSS Painting Service Pty Ltd [2024] NSWPIC 546
APPLICANT:	Abdul Azim Hazara
RESPONDENT:	VSS Painting Service Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	2 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; entitlement to weekly compensation in the section 38 period; insurer assisted worker to obtain apprenticeship under which his hours are casual; obligations of apprenticeship contract; whether worker is likely to continue indefinitely to be incapable of undertaking further additional work or work that would increase his current weekly earnings; Held – award for the applicant for weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay the applicant weekly compensation pursuant to s 38 of the Workers Compensation Act 1987: (a) from 2 October 2023 to 31 March 2024 at the rate of $376, and (b) from 1 April 2024 to date and continuing at the rate of $400.

STATEMENT OF REASONS

BACKGROUND

Abdul Azim Hazara was employed by VSS Painting Service Pty Ltd (VSS) as a painter when he fell off a ladder and suffered an injury to his back on 8 February 2021. VSS and its insurer agree that Mr Hazara is no longer able to work as a painter.
Vocational assessment identified an apprenticeship in electrotechnology as suitable employment. The insurer and rehabilitation provider assisted him to find a position with Tayar Electroservices Pty Limited (Tayar).
Mr Hazara attends TAFE one day per week. He is contracted to work every day but his employer does not have enough work for him to be engaged full time and he is paid for the hours he works. He will not become a qualified electrician until 2027.
On 1 March 2023, the insurer made a work capacity decision to the effect that Mr Hazara’s work capacity was 40 hours per week and reduced his weekly compensation payments to $187 per week from 13 June 2023.
The issue for determination is the amount of weekly compensation to which Mr Hazara is entitled after the second entitlement period. In particular, the issue is whether, because of the terms of his apprenticeship contract and the limited work available, he is likely to continue indefinitely to be incapable of undertaking further additional employment or employment that would increase his current weekly earnings, as set out in s 38(3)(c) of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

At a preliminary conference on 13 August 2024, it was agreed that Mr Hazara was paid until the end of the second entitlement period on 1 October 2023. The Application to Resolve a Dispute (ARD) was amended to claim weekly compensation from 2 October 2023.
The claim was listed for conciliation conference and arbitration hearing on 6 September 2024 when Mr Beran appeared for Mr Hazara and Ms Goodman appeared for VSS.
During the conciliation conference, Mr Beran handed up a contract between Mr Hazara and Tayar dated 1 November 2023.
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 documents which were in evidence and considered in making this determination are:
(a)    ARD and attached documents;
(b)    Reply;
(c)    VSS’s Application to Admit Late Documents dated 30 August 2024, and
(d)    the contract between Mr Hazara and Tayar dated 1 November 2023.
There was no oral evidence.
In his statement dated 30 May 2024, Mr Hazara described the injury in 2021. He said that at the time of the injury, he was working six days a week and eight hours per day as a painter for VSS and earning $35 per hour.
Mr Hazara said that he went to TAFE in August 2022, but was told he could not start an apprenticeship because of his visa status. In August 2023, he became a permanent resident and commenced his apprenticeship in electrotechnology. He now attends TAFE one day per week and that he is contracted to work every day, but the company does not have enough work for him to be there full time, so that he works 25 to 30 hours per week. He does not go to work on days when his boss does not have work for him. He said that, as an apprentice, he is only able to work for one company at a time and that his friends at TAFE have the same issues with their employers, who do not have enough work for them. He said he will not complete his apprenticeship until 2027. He said he is now making an average of $702 per week.
Mr Hazara said that his sleep is disturbed and he is fatigued by the end of the day. He said he can no longer stand for long due to increased pain and cannot climb ladders for extended periods.
Mr Hazara’s general practitioner, Dr Danishyar, provided certificates of capacity and a series of those documents appear in the Reply. Since 27 March 2023, Dr Danishyar has certified Mr Hazara fit for some type of work for eight hours per day on five days per week. Most of the certificates do not contain any specific restrictions, though some include the limitation “as instructed by physio.”
A vocational assessment report by Ms Samson and Ms Carter of Prestige Health Services Australia dated 9 March 2022 determined that appropriate vocational options for Mr Hazara were delivery driver, pick packer and electrician apprentice, but his nominated treating doctor, Dr Danishyar only provided approval for the apprentice role, noting for the other two roles that “Abdul disagrees”. The report considered Mr Hazara’s educational and work background and noted his refugee status, but did not consider his residency status and the impact on an apprenticeship.
Dr Shahzad undertook an injury management consultation and reported to the insurer on 28 April 2022. He was shown medical reports which do not appear in the file. Mr Hazara had recently undergone an injection into his L5/S1 facet joints. He reported residual left sided moderate back pain, radiating to the left sacro-iliac region and into the groin. He had intermittent pins and needles in his left heel. Though the radiology showed disc degeneration and disc bulging, Dr Shahzad considered Mr Hazara was “likely” able to return to pre-injury work capacity or consider the options outlined in the vocational assessment report.
A letter from Mr Tayar of Tayar Electrical Services confirms that Mr Hazara commenced as a first-year electrical apprentice – casual for 30 to 40 hours per week at the rate of $19.80 per hour plus super, commencing on 1 August 2022. He said that leave entitlements were not applicable to the position and the remuneration is applicable only for the hours worked.
VSS’s Application to Admit Late Documents attached forms completed in respect of the State Insurance Regulatory Authority’s JobCover placement program under which Tayar claimed, employee incentive payments from 1 August 2022. Mr Hazara and Tayar entered into a JobCover Placement Program agreement which was signed by Mr Hazara on 1 September 2022, by Tayar on 4 August 2022 and by the insurer on 5 September 2022. It contains the following with respect to work environment details:
“PHSA conducted a workplace assessment at Tayar Electrical Services on 30 June 2022 and based on the outcome of the assessment, it was confirmed that the workplace was suitable for Mr Hazara. Mr Hazara would be required to assist by passing tools, gathering required equipment, watch and learn from Mr Tayar or another electrician.”
Pay records in the Reply commence on 5 March 2023 for the pay period commencing 27 February 2023. The rate was $21.80 per hour. During that period, Mr Hazara worked varying hours from as little as 10 in April 2023 to 47.5 for the period ending on 24 December 2023.
A Labour Market Assessment Report was prepared Ms Samson on 5 January 2023. The report identified that there were available roles on a full-time basis for apprentice electricians.
The insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 March 2023, and informed Mr Hazara that a decision had been made to reduce the amount of weekly compensation to $187 per week from 13 June 2023. The insurer said it believed that Mr Hazara was currently able to work in suitable employment identified in the notice for eight hours a day and five days per week. It noted that the most recent certificate of capacity certified him fit to work those hours. It said that an exercise physiologist had confirmed what Mr Hazara’s capacity by email dated 13 April 2022 and an injury management consultation with Dr Shahzad on 6 April 2022 said that Mr Hazara had capacity for pre-injury hours and duties. The notice read:
“Furthermore, you too have demonstrated your capacity to work as an Electrician Apprentice with Tayar Electrical after commencing employment with them on 1 August 2022 following Workers Insurance’s approval of a JobCover Placement Program for you. Since commencing this employment you have worked on average 33.18 hours per week and earned $656.90 gross per week for the period from 1 August 2022 to 28 November 2022. We too note that you have recently returned back to working with Tayar Electrical from 1 February 2023 after returning from overseas.”
The insurer said that it had determined to s 43 (1)(b) of the 1987 Act that the vocational option of “Electrician Apprentice” was suitable for Mr Hazara and that “labour market research” completed by Prestige Health Services Australia on 5 January 2023 found that there were employers who confirmed that full-time work is available, including one day per week at a registered training organisation, and that Mr Hazara’s capacity could be accommodated. The insurer determined that Mr Hazara could earn $1,200 per week in that employment.
On 9 June 2023 Mr or Ms Chowdhury, exercise physiologist, prepared a functional capacity report. The report contained the following history:
“Mr. Hazara informed me that he sustained an injury to his lower back when he fell backwards off a step and onto his left leg. This has resulted in low back pain with SIJ dysfunction on his left side. He presented with signs consistent with this diagnosis. Due to the nature of his injury, he is limited in his functional capacity as his current loading tolerance is impaired at the lumbo-pelvic region. He would like to increase his functional capacity which is currently restricted.
During his initial assessment he presented with the following symptoms:
• Some discomfort reported in lower back during loading
• Instability on L leg during single leg stance and movements
• Reduced hip mobility on L side vs R side
• Pain in left heel
Mr. Hazara's current diagnosis and symptoms listed above are restricting his full functional capacity. He is determined to progress forward with his rehabilitation.”
The exercise physiologist said:
“I can confirm that Mr. Hazara is limited in his capacity due to the reasons listed above. He shows signs of instability at his lumbo-pelvic region - increased during dynamic movement and left ankle. The primary goal for this treatment cycle is to focus on reducing current pain symptomology in his lower back whilst improving strength and stability of his lumbo-pelvic region musculature and joint motion proficiency.”
There are no further reports about that treatment or describing whether Mr Hazara’s functional capacity improved.
Ms Samson completed a case closure report on 29 August 2023 detailing the rehabilitation activities since 4 July 2022. She noted that Mr Hazara had been referred on 27 January 2023 for vocational redeployment service and that job seeking services commenced on 21 March 2023. There appear to be a number of errors in the dates in the report so that it is somewhat difficult to understand. It reads in part:
“On 9 June 2022, PHSA was able to obtain a work trial for Mr Hazara with Tayar Electrical Services. However, Mr Tayar Mohammed advised that he was able to assist with a work trial but not paid employment due to Mr Hazara being a mature apprentice.
PHSA completed a Workplace assessment on 30 June 2022, the purpose was for Mr Hazara to undertake a 4-week work trial with Mr Tayar at Tayar Electrical Services to gain experience, increase functional tolerances and obtain paid employment.
On 4 July 2023, Mr Hazara commenced the work trial as an Electrician Apprentice on a fulltime, 38 hours per week for 4 weeks.
PHSA was able to assist Mr Hazara with the Job Cover Placement Program (JCPP) and continue with his employment from 4 July 2022, as Tayar Electrical had changed their mind and took Mr Hazara on through JCPP.
On 23 August 2023, Insurer EML confirmed that services for Mr Hazara could be closed, given he was independent in job seeking and would continue with his Electrician Apprentice role with his employer Mr Tayar Mohammed. Mr Hazara had been monitored for a period of 63 weeks to ensure it was a safe and durable return to work. After confirming no further services were required, closure was then confirmed with all parties.”
On 11 April 2024, for Mr Hazara made an application to continue to receive weekly compensation after the second entitlement period. He said on that form:
“I have returned to work at my full capacity as an electrical apprentice. I work as many hours as are available, but this averages to be about 40 per week. I’m earning in line with my earning capacity assessment of the insurer.”
On 17 July 2023 the insurer wrote to Mr Hazara and informed him that he did not meet the requirements to continue to receive weekly compensation after 130 weeks. His payments then ceased on 1 October 2023. The notice confirmed that Mr Hazara had commenced working with Tayar as electrician apprentice on 1 August 2023 under a JobCover Placement Program.
Mr Hazara attached a series of payslips to his ARD, each of which states that he was employed on a casual basis.
An Apprenticeship/Traineeship Training Contract was signed by Mr Hazara and Mr Tayar on 1 November 2023 with the assistance of an Apprenticeship Network Provider. It provided that the apprenticeship commenced on 13 August 2023, and that the nominal term of the training contract was 48 months. It stated that Mr Hazara had not previously worked as an apprentice.
Under the contract, Tayar agreed, among other things, that:
“a) the Contract commences from the stated date of commencement, provided that it has been registered or approved under the provisions of the relevant State/Territory legislation
b) the Contract can only be changed by our agreement and according to State/Territory legislation and the State/Territory government department, authority or agency must be informed of the proposed change/s. In some States/Territories approval for the change/s must be sought”
Mr Hazara agreed under the contract to:
“a) attend work, do my job, and follow my employer's instructions, as long as they are lawful
b) work towards achieving the qualification stated in our Training Contract
c) undertake any training and assessment in our Training Plan.”
Clause 38 of the contract provided that Mr Hazara was paid under the Electrical, Electronic and Communications Contract Award 2020 and that he was contracted to work full time.

SUBMISSIONS

Mr Beran took me to s 38(3) of the 1987 Act which relevantly provides:
“(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.”
Mr Beran said that s 38(3)(a) and (b) had been complied with and that s 38(3)(c) was in issue. He said that it was necessary to consider the definition of current weekly earnings in cl 8 of Schedule 3 of the 1987 Act:
“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.”
The insurer had identified suitable employment for Mr Hazara as being an electrical apprentice and Mr Beran said that the amount Mr Hazara was able to earn was that in his current employment, which is a real job, as described in Wollongong Nursing Home Pty Ltd v Dewar.[1] Mr Beran contrasted Mr Hazara’s employment with Tayar with the jobs identified in the vocational assessment reports which may or may not be real jobs.
[1] [2014] NSWWCCPD 55.
Mr Beran said it was clear that Mr Hazara’s job was subject to a training contract as defined in the Apprenticeship and Traineeship Act 2001 (the Apprenticeship Act). He highlighted paragraph (b) of the extract cited at [32] above and Mr Hazara’s obligations at cited at [33]. He noted s 12 of the Apprenticeship Act which relevantly provides:
“12    Training contracts
(1)     A training contract has effect as if it were a deed duly executed by the employer and the apprentice or trainee.
(2)     Subject to section 11:
(a)the training contract for an apprenticeship binds the employer and the apprentice:
(i)from the time the employer is notified that the establishment of the apprenticeship has been approved, or
(ii)from the end of the probationary period,
whichever is the later, until the end of the term of the apprenticeship, and
(b)(Repealed)
(c)   …
(2A) A reference in this section to a training contract is a reference to the training contract most recently executed by the employer and apprentice or trainee, as varied in accordance with this Act.
(3)     Any time during which an employer has employed a person as an apprentice or trainee is taken to form part of the term of the person’s apprenticeship or traineeship.”
Mr Beran highlighted s 12(1) of the Apprenticeship Act and said that Mr Hazara was contractually bound to do what his master asked him to do and was contractually prevented from doing work for other people because he has to be available when and where his employer required. It was therefore not possible for him to work for another employer with fixed hours of work or as an Uber driver. Mr Beran also said that the option of working as a delivery driver was not approved by Mr Hazara’s general practitioner. Mr Beran said that Mr Hazara was therefore incapable of undertaking further additional employment that would increase his current weekly earnings.
The remaining element of s 38(3)(c) was whether the situation was likely to continue indefinitely. Mr Beran said that there was little authority on the meaning of those words and referred me to Member Isaksen’s decision in Sinclair v Linfox Armaguard Pty Ltd[2] (Sinclair) where the Member said:
“I have found that Mr Sinclair has had no current work capacity since 28 November 2022. That entitles Mr Sinclair to weekly payments of compensation pursuant to s 38 (2) of the 1987 Act if he is likely to continue indefinitely to have no current work capacity.
I took the view in Morcos v Deosa Enterprises Pty Ltd [2021] NSWWCC 45 at [25] that it was necessary for a worker to establish that he or she was likely to have no current work capacity for an unknown or indeterminate period into the future to obtain the benefit of s 38(2). A similar approach was taken by Arbitrator Harris in Roberts v University of Sydney [2020] NSWWCC 54 at [99-100]:
‘I agree with the applicant’s submission that the meaning of “indefinitely” is akin to an unknown or non-specific period.
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.’”
[2] [2024] NSWPIC 426.

Mr Beran said that there is no guarantee when Mr Hazara will complete his apprenticeship and the evidence showed that he will be bound by the contract beyond the end of the s 38 period. Mr Beran said that Mr Hazara had fulfilled the requirements of s 38(3) and was entitled to 80% of pre-injury average weekly earnings less his current weekly earnings. He did not argue that the insurer should top up Mr Hazara’s payments when he was not working 40 hours per week.
Mr Beran confirmed that the period of compensation claimed commenced on 2 October 2023 and pre-injury average weekly earnings were agreed to be $1,560 from 1 October 2023 and $1,590 from 1 April 2024. For a 40-hour week, it was agreed that Mr Hazara earned $872. Mr Hazara claimed the difference between $872 per week and $1,560 per week. Mr Beran stressed that he did not claim a top up payment when he worked less than 40 hours per week.
Ms Goodman noted that the apprenticeship contract was signed on 1 November 2023 and there was no evidence as to what was in place before the purported commencement date of 13 August 2023. She said there was no clause in the contract which prevented Mr Hazara from working for another employer. Ms Goodman noted that there were several occasions reflected in the pay records on which Mr Hazara had worked more than 40 hours, so that the concession of 40 hours was not a reflection of his capacity. Ms Goodman said I would not accept that Mr Hazara’s capacity was limited to 38 hours per week.
Ms Goodman noted that the medical evidence of Dr Shahzad and in the certificates of capacity was that Mr Hazara could work 40 hours per week. The vocational assessment report said that the market rate for apprentices was $30 per hour and Ms Goodman said that the jobs were not hypothetical but reflected the conversations had by the assessor with particular employers.
The evidence showed, Ms Goodman said, that Mr Hazara had obtained a work trial with Tayar with the assistance of the rehabilitation provider. After a short period, Tayar determined to employ Mr Hazara.
The respondent’s case is that Mr Hazara is not working to his full capacity. Ms Goodman referred to JC Ludowici & Son Ltd v Cutri[3] to argue that where a worker is working to his full capacity, the loss is measured by reference to his actual earnings. Because Mr Hazara had demonstrated a greater capacity, it was necessary to take that capacity into account. Ms Goodman said there was no evidence that Mr Hazara would not have the same capacity going forward. She said that Mr Hazara had the capacity to work more hours than he is working with his employer. Ms Goodman agreed, in answer to my question, that there was no evidence to contradict Mr Hazara’s evidence that he was working the hours that his employer was able to provide but said that there was nothing to show that he was likely to continue indefinitely to be incapable of undertaking additional employment that would increase his current weekly earnings.
[3] (1992) NSWLR 580.
In reply, Mr Beran stressed that the reason Mr Hazara was unable to work 48 hours a week was because of his injury. The summary of payslips showed that, in a period of almost a year, he once worked 47 hours and on three or four occasions worked just over 40 hours. Mr Beran said the extended hours were an aberration.
Mr Beran said that even if I accepted the labour market analysis as accurate, there remains an entitlement. He noted the disconnect between the placement of Mr Hazara in suitable employment as a result of rehabilitation and the argument he was capable of working more hours.

FINDINGS AND REASONS

The dispute turns solely on s 38(3)(c). Mr Hazara has fulfilled the requirements of s 38(3)(a) and (b). Mr Hazara is entitled to compensation if I am satisfied that he is likely to continue indefinitely to be incapable of undertaking further additional employment or work that would increase his current weekly earnings. The concept of current weekly earnings is relevant to fix the amount by which Mr Hazara’s capacity is measured. It was agreed that figure is $872.
As a result of the injury on 8 February 2021, VSS’s insurer accepted that Mr Hazara was not able to return to his pre-injury employment as a painter. It did not argue in these proceedings that he could return to that employment.
A list of wages paid by Tayar appears in the Reply and covers a period of 49 weeks in the period which spans 27 February 2023 to 17 March 2024. The hourly rate for the period was $21.80. Though it would have been easy to provide one, the list does not include a total. Those weeks when Mr Hazara worked more than 38 hours are highlighted but there are many weeks when he worked far less. There are 13 weeks in the period when he worked less than 30 hours and in some weeks he worked and was paid for less than 20. On my calculations, he averaged roughly 32.5 hours per week. Because Mr Hazara is paid for the day at TAFE, I presume that day to be included. The highest number of hours were worked in the week ending 24 December 2023, when, no doubt, many clients wanted their work completed before the holiday period.
The schedule shows that Mr Hazara earned $872 when he worked 40 hours. It highlights that Mr Hazara’s hours are irregular and suggests that it may not be possible to know how many hours will be worked from one week to the next. All of the documents from Tayar describe Mr Hazara’s work as casual. I accept that the weeks when he worked more than 40 hours are rare.
The apprenticeship contract commenced in August 2023. The reason for that is set out in Mr Hazara’s statement - his residency status prevented him from commencing an apprenticeship before he became a permanent resident. While the formal contract commenced on that date, the circumstances of his employment remained the same. His hourly rate is the same and his employment remains casual.
For the entire period of compensation claimed, Mr Hazara has been employed under the contract evidenced in the agreement dated 1 November 2023. The contract binds Mr Hazara to an apprenticeship in accordance with the Apprenticeship Act with the approval of an apprenticeship network provider. It cannot be terminated as readily as an ordinary employment contract.
As I understand Ms Goodman’s submissions, VSS argues that Mr Hazara is either capable of earning more money as an apprentice working for another employer or by taking on part time work to increase his hours, the latter being further additional employment.
The second of those concepts can be shortly dealt with. I accept Mr Beran’s submission that the contract with Tayar requires Mr Hazara to be available when there is work. The ordinary meaning of the words further additional work suggests additional hours doing another job - such as Uber driving. The nature of the employment relationship and the terms of the apprenticeship contract preclude Mr Hazara taking on part time work. I agree that the contract requires Mr Hazara to work for Tayar when Tayar has work for him, however many hours that might be. I am satisfied that for the time being, while he is employed by Tayar, Mr Hazara is incapable of undertaking further additional work.
VSS also argued that Mr Hazara was capable of earning more as an electrical apprentice with another employer. The insurer makes that argument despite that fact that Mr Hazara’s employment was obtained with the assistance of a rehabilitation provider funded by it, initially as a work trial and then as an apprenticeship.
Ms Sampson’s report dated 29 August 2023 points out that the initial work trial was unpaid because Mr Hazara was a mature age apprentice. Despite the apparent errors as to dates, the context of the report suggests that the events described are chronological – commencing with the identification of vocational options, progressing though job seeking services and cold canvassing and culminating in the role with Tayar.
The labour market assessment report which identified opportunities with other employers is dated 5 January 2023, more than 18 months ago. There is no detailed description of the methodology by which it was prepared other than a reference to “internet based resources”. The author identified a number of vacancies in the Sydney area on various on-line platforms. Contact was then made with three prospective employers. There is no information in the report to explain what was said about Mr Hazara’s restrictions. There is nothing to indicate who was spoken to and whether that person was likely to speak with authority for the employer.
After the date of the report, the exercise physiologist considered that treatment was required and Mr Hazara has described his ongoing symptoms and capacity. In the absence of further information as to the methodology of the labour market analysis, I accept Mr Beran’s submission that the positions are hypothetical.
In addition, Mr Hazara has contractual obligations created by the apprenticeship contract. Unless there is a reason to terminate that contract approved by the training provider in accordance with its terms, Mr Hazara has committed to completing his employment with Tayar. Whilst it is anticipated that Mr Hazara will complete his apprenticeship in 2027, it is not certain, nor has a specific date in that year been nominated.
I agree with the decisions of other Members collected in Sinclair that the words “likely to continue indefinitely” connote an unknown or non-specific period. I consider that Mr Hazara’s situation is unlikely to change for a non-specific period. I am satisfied that Mr Hazara is likely to be indefinitely incapable of undertaking further or additional work that would increase his current weekly earnings.
Mr Hazara’s entitlement to compensation is therefore the difference between his current weekly earnings of $872 and his pre-injury average weekly earnings. 80% of pre-injury average weekly earnings of $1,560 is $1,248 and the difference between that sum and $872 is $376 and payable for the period from 2 October 2023 to 31 March 2024. After indexation, 80% of pre-injury average weekly earnings of $1,590 is $1,272 and the difference is $400.
I order VSS to pay Mr Hazara weekly compensation pursuant to s 38 of the 1987 Act:
(a) $376 per week from 2 October 2023 to 31 March 2023, and
(b) $400 per week from 1 April 2024 to date and continuing.

[2024] NSWPIC 546

2 October 2024