Hohepa v Truserv Pty Ltd
[2024] NSWPIC 398
•24 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hohepa v Truserv Pty Ltd [2024] NSWPIC 398 |
| APPLICANT: | Henry Hohepa |
| RESPONDENT: | Truserv Pty Ltd |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 24 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); claim for weekly compensation; sections 33, 36, 37 and 38 of the 1987 Act; whether applicant had current work capacity at various times; calculation of weekly benefit; Held – applicant had current work capacity and no current work capacity during various periods; order for payment of weekly compensation made accordingly. |
| DETERMINATIONS MADE: | The Commission determines: 1. As a result of the lumbar spine injury: (a) from 30 November 2019 to 30 June 2021, the applicant had current work capacity; (b) from 1 July 2021 to 7 October 2021, the applicant had no current work capacity; (c) from 8 October 2021 to 14 October 2021, the applicant had current work capacity; (d) from 15 October 2021 to 31 January 2022, the applicant had no current work capacity; (e) from 1 February 2022 to 28 May 2022, the applicant had current work capacity; (f) from 1 June 2023 to date, the applicant had no current work capacity, and (g) the applicant is likely to continue indefinitely to have no current work capacity. The Commission orders: 1. The respondent is to pay the applicant weekly payments of compensation pursuant to s 36(2) of the Workers Compensation Act 1987 as follows: (a) $1,311.63 per week from 30 November 2019 to 29 February 2020. 2. The respondent is to pay the applicant weekly payments of compensation pursuant to s 37(2) of the Workers Compensation Act 1987 as follows: (a) $1,045.79 per week from 1 March 2020 to 30 March 2020; (b) $1,060.53 per week from 1 April 2020 to 30 June 2020; (c) $652.53 per week from 1 July 2020 to 30 March 2021; (d) $694.09 per week from 1 April 2021 to 30 June 2021; (e) $1,473.82 per week from 1 July 2021 to 30 September 2021; (f) $1,491.36 per week from 1 October 2021 to 7 October 2021; (g) $1,258.37 per week from 8 October 2021 to 14 October 2021; (h) $1,491.36 per week from 15 October 2021 to 31 January 2022; (i) $778.96 per week from 1 February 2022 to 28 February 2022; (j) $0.00 per week from 1 March 2022 to 30 March 2022; (k) $450.59 per week from 1 April 2022 to 30 April 2022, and (l) $0.00 per week from 1 May 2022 to 28 May 2022. 3. The respondent is to pay the applicant weekly payments of compensation pursuant to s 38(2) of the Workers Compensation Act 1987 as follows: (a) $0.00 per week from 29 May 2022 to 31 May 2023; (b) $1,634.98 per week from 1 June 2023 to 30 September 2023; (c) $1,673.73 per week from 1 October 2023 to 30 March 2024, and (d) $1,703.69 per week from 1 April 2024 to 29 November 2024. 4. The parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above. |
STATEMENT OF REASONS
BACKGROUND
This matter concerns claims made by Henry Hohepa (the applicant) against Truserv Pty Limited (the respondent) for:
(a) weekly compensation pursuant to ss 33, 36, 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) a general order for medical and related expenses pursuant to s 60 of the 1987 Act.
By Amended Certificate of Determination issued on 7 May 2024 in these proceedings, the Personal Injury Commission (the Commission) determined:
(a) the applicant did not sustain an injury to his lumbar spine with a date of injury of 15 November 2019 pursuant to ss 4(a) and 9A 1987 Act.
(b) The applicant did not sustain an injury to his lumbar spine with a deemed date of injury of 29 November 2019 as a result of the nature and conditions of work pursuant to s 4(b)(i) 1987 Act, and
(c) The applicant did sustain aggravation and exacerbation of a disease in his lumbar spine in the course of employment and his employment was the main contributing factor to the aggravation and exacerbation, with a deemed date of injury of 29 November 2019 pursuant to s 4(b)(ii) 1987 Act.
Further, the Commission ordered:
(a) the respondent to pay the applicant’s expenses in accordance with s 60 1987 Act upon production of accounts, receipts or Medicare Notice of Charge.
(b) The matter is to be listed for a conference to deal with the issue of calculation of weekly compensation pursuant to ss 33, 36, 37 and 38 1987 Act.
By directions issued on 20 May 2024, the Commission directed that a scheduled conference be vacated and, instead, the parties file and serve written submissions in relation to the issue of incapacity and entitlement to weekly compensation benefits.
ISSUES FOR DETERMINATION
At the hearing, the parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) for the purpose of calculating weekly compensation is $1,722.27.
The applicant has not been paid any weekly compensation to date.
The issue requiring determination is:
(a) the applicant’s entitlement to weekly compensation pursuant to ss 33, 36, 37 and 38 of the 1987 Act.
SUBMISSIONS
The following written submissions were filed accordance with those directions issued on 20 May 2024:
(a) respondent’s written submissions dated 28 May 2024;
(b) applicant’s written submissions dated 31 May 2024, which included two annexures: Annexure A, being a statement of the applicant dated 31 May 2024; and Annexure B, being the applicant’s bank statements between 11 June 2020 and 12 January 2024, and
(c) respondent’s written submissions in reply dated 26 June 2024.
The various written submissions were detailed and have been considered in full.
In summary, the respondent submitted that:
(a) the evidence establishes that the applicant worked for Uber from about:
(i) 15/3/21 – 15/6/21;
(ii) 13/10/21 – 14/10/21;
(iii) 9/2/22 – 28/7/22, and
(iv) 20/4/23 – 23/5/23.
The payments from Uber establish that the applicant has, and has had, current work capacity. Further, those payments must be taken into account when assessing what, if any, entitlement to weekly compensation the applicant has.
(b) The evidence establishes that the applicant was in receipt of JobSeeker payments, at least during the period from 19 November 2021 to 24 January 2024. Evidence about that issue should be provided. JobSeeker payments are taken to be part of the applicant’s “current weekly earnings” for the purpose of assessing what, if any, entitlement the applicant has to weekly compensation. They are evidence that the worker has current work capacity.
(c) There are other credits in the applicant’s account, the nature of which are unexplained. It may be that those payments are for work carried out by the applicant. Evidence about the nature of those payments should be provided.
(d) The applicant’s evidence that he has not worked since October 2021 is patently incorrect and adversely reflects on his credit.
(e) Opinions expressed by medical providers regarding the applicant’s lack of work capacity are tainted by the lack of an accurate history about the applicant’s post injury work history. Such opinions are unreliable and of no probative value: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
(f) The only State Insurance Regulatory Authority (SIRA) certificate in evidence certifies the applicant as having no current work capacity from 5 March 2020 to 26 March 2020.
(g) There is medical evidence from Dr Singh that the applicant would be able to return to, at least, some sort of work following successful surgery.
(h) Based on all available evidence the respondent submits:
(i)the Commission should find at all times the applicant has had current work capacity;
(ii)the weekly amount that the applicant has had the capacity to earn in suitable employment is:
(1)at least 95% of his PIAWE in the first 13 weeks of any work related incapacity;
(2)at least 80% of his PIAWE thereafter;
(iii)the Commission should not be satisfied that the applicant has, or has had, any entitlement to weekly compensation after 130 weeks for the following reasons:
(1)if the Commission found the applicant has no current work capacity, the overall evidence should not satisfy it on the balance of probabilities that is “likely to continue indefinitely”: s 38(2);
(2)if the Commission found the applicant has current work capacity:
a. The overall evidence should not satisfy it on the balance of probabilities that the applicant is “likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current work capacity”: s 38(3)(c) of the1987 Act;
b. the available evidence is that the applicant is not currently working for a period not less than 15 hours per week: s 38(3)(b) of the 1987 Act.
In summary, the applicant submitted as follows:
(a) the applicant noted various omissions and inaccuracies in the evidence as to payments made to the applicant and amended the updated wages schedule to reflect those.
(b) The applicant claims the differentials between 95% and then 80% of indexed PIAWE less the applicant’s actual earnings as set out in the amended updated wages schedule referencing the agreed PIAWE of $1,772.27 with respect to the applicant’s weekly compensation entitlements pursuant to ss 36 and 37 of the 1987 Act.
(c) The evidence demonstrates that the applicant has had no capacity to work. The evidence demonstrates that the applicant worked as an Uber driver at various times due to financial necessity however, because of his back pain, he found it increasingly difficult and struggled to perform that work.
(d) With respect to the claim pursuant to s 37, the applicant concedes there is no evidence before the Commission with respect to the number of hours worked while Uber driving. In that respect, the applicant accepts his entitlement to weekly payments should be based on 80% of the PIAWE less actual earnings.
(e) With respect to the claim pursuant to s 38, the medical evidence is that the applicant had no capacity to work. The evidence from the applicant’s bank statements is that he has not engaged in Uber driving since 30 May 2023. The applicant submits that is due to him not being able to perform Uber driving work as a result of his injury and that he does not have any capacity to work. Further, the financial records together with the applicant’s evidence confirm that the applicant earned no income during the period from 1 August 2022 to 16 April 2023 and the applicant submits it was a result of his incapacity caused by the injury. The applicant’s evidence is that various credits received during the period were not income;.
(f) JobSeeker payments (Centrelink unemployment benefits) received by the applicant during the period from 19 November 2021 to 24 January 2024 were not received from the employer, noting that the applicant’s employment was terminated by the respondent on 30 November 2019. In the event that the applicant receives weekly compensation entitlements, the applicant will be required to reconcile and repay the JobSeeker payments to Centrelink. Clause 10 of Schedule 3 to the 1987 Act does not apply to such JobSeeker payments.
(g) The Commission should award the applicant weekly compensation accordingly.
In summary, the respondent submitted in reply as follows:
(a) in his 2020 tax return the applicant recorded losses from supplementary income of $2871 as a taxi driver.
(b) The applicant earned income as a Uber driver on 20 April 2023, 21 April 2023 and in May 2023.
(c) The applicant’s evidence that he has not worked since October 2021 is patently incorrect, adversely reflects on his credit and discounts the opinions expressed by medical providers relating to the applicant’s work capacity.
(d) The respondent noted various earnings information and calculated average gross weekly earnings relating to Uber on that basis.
(e) The respondent noted various other credits recorded in the applicant’s bank account, including credits noted as “Wage” on 21 March 2022 and 29 March 2022 and also other credits, which have not been explained or addressed by the applicant.
(f) The applicant was in receipt of JobSeeker payments from 19 November 2021 until 24 January 2024. The Commission should infer that in obtaining such payments, the applicant represented that he was capable of earning income but for the Covid emergency.
(g) Based on the totality of the evidence, the Commission should find that:
(i)at all times, the applicant had current work capacity;
(ii)during the s 36 period, the applicant was able to earn 95% of his PIAWE;
(iii)during the s 37 period, the applicant was able to earn 80% of his PIAWE, and
(iv)the applicant has no entitlement to weekly compensation after 130 weeks.
(h) Having regard to the definitions of “earnings” and “current weekly earnings” in Schedule 3 and cl10 of Schedule 6 to the 1987 Act, JobSeeker payments received by the applicant should be taken into account when assessing weekly compensation entitlement, and any entitlement to weekly compensation should be reduced by the amount of JobKeeper payments received by the applicant during any period in question.
EVIDENCE
Documentary evidence
By consent, the following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute with attached documents;
(b) Reply with attached documents;
(c) Application to Admit Late Documents (AALD) dated 5 April 2024, lodged by the respondent;
(d) AALD dated 8 April 2024, lodged by the applicant;
(e) updated Wages Schedule, lodged by the applicant, and
(f) attachments to the applicant’s submissions in reply with respect to incapacity and entitlement to weekly compensation dated 31 May 2024.
Oral evidence
No party applied to adduce oral evidence or cross-examined any witness.
LEGISLATION
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.”
Section 36 of the 1987 Act states:
“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.”
Section 37 of the 1987 Act states:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% 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 and has returned to work for not less than 15 hours per week is entitled during the second 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.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during 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.”
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.”
Item 9 of Schedule 3 of the 1987 Act 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.”
Section 32A of the 1987 Act relevantly states:
“(1) In this Division and in Schedule 3—
...
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
CONSIDERATION
The applicant claims weekly compensation:
(a) in respect of the period from 30 November 2019 to 29 February 2020, pursuant to s 36 of the 1987 Act;
(b) in respect of the period from 1 March 2020 to 28 May 2022, pursuant to s 37 of the 1987 Act, and
(c) in respect of the period from 29 May 2022 ongoing, pursuant to s 38 of the 1987 Act.
The applicant’s PIAWE was agreed to be $1,772.27 as at the date of injury.
The reasons for the Certificate of Determination issued on 7 May 2024 details the evidence in relation to injury generally and also in relation to incapacity. I do not propose to recount that evidence in detail in these reasons.
I note however, in relation to the issue of incapacity:
(a) Dr Lee stated that the applicant had no capacity to work from 29 November 2019 to date. Dr Lee stated that the applicant’s prognosis was guarded however he may be able to resume certain duties, subject to restrictions, if he underwent laminectomy surgery;
(b) on 6 March 2020, Dr Lim stated that the applicant was “totally unable to work” and had “0 hours/day, 0 days/week capacity”;
(c) on 8 November 2021, Dr Maloney opined that the applicant had no capacity to work and that likelihood of that changing is remote;
(d) on 7 February 2022, Dr Tiwari expressed the opinion that it is very unlikely that the applicant is fit to return to work in any capacity, particularly in the absence of surgical intervention;
(e) on or about 26 April 2023, Ms Wong, physiotherapist, reported that the applicant “reported currently experiencing lower back pain with limiting walking capacity of 5 minutes”;
(f) on 26 March 2024, Dr Maloney stated that the applicant’s underlying constitutional problem causes intrusive pain to the point that the applicant had no capacity to work, and
(g) various medical certificates certified that the applicant was unfit for work due to disc bulge and lumbar spine arthritis.
Considered as a whole, that evidence supports a finding that the applicant had no capacity to work as a result of the injury from 30 November 2019 ongoing.
However, as I noted previously, the matter is somewhat complicated because the applicant undertook some work as a Uber driver since he ceased employment with the respondent.
In the earlier reasons I stated that, considering the evidence as a whole, and notwithstanding various inconsistencies, I formed the clear impression that the applicant has done his best to provide an honest and accurate history and I accepted the credibility of the applicant’s evidence.
The applicant’s evidence is that he worked as an Uber driver at various times due to financial necessity however, because of his back pain, he found it increasingly difficult and struggled to perform that work. The applicant’s reported difficulty in undertaking and continuing that work due to his back injury is consistent with the medical evidence in relation to his reported ongoing back symptoms at various times.
Further, the applicant’s evidence is that he earned no income during the period from 1 August 2022 to 16 April 2023 as a result of his incapacity caused by the injury.
The applicant’s evidence is that various credits received during the period were not income. I note that the applicant’s evidence in that regard is inconsistent with the applicant’s banks statements which appear to record various payments to the applicant in respect of work performed by the applicant during that period.
To the extent that the applicant’s bank statements record receipt of payments from Uber for work performed by him, I prefer and accept that evidence of the bank statements as I consider that it is likely to be a more accurate record of the applicant’s income during the respective periods.
It appears from the applicant’s bank statements that the applicant has not derived income from Uber driving at least since 30 May 2023. The applicant submits that is due to him not being able to perform Uber driving work as a result of his injury and that he does not have any capacity to work.
There is no evidence as to the number of hours worked by the applicant whilst Uber driving. It appears from the applicant’s bank statements that the applicant’s earnings from his work as an Uber driver varied significantly from week to week.
I note that the applicant concedes there is no evidence before the Commission with respect to the number of hours worked whilst Uber driving. In that respect, the applicant accepts that his entitlement to weekly compensation pursuant to s 37 of the 1987 Act in respect of the periods that he undertook such work should be based on 80% of the PIAWE, less actual earnings.
Further, in relation to the claim for weekly compensation pursuant to s 38 of the 1987 Act, the applicant concedes that, because there is no evidence before the Commission with respect to the number of hours worked while Uber driving, the applicant cannot establish that he satisfies the requirements of s 38 in respect of those periods that he worked Uber driving.
I found the various medical evidence in relation to capacity to be reasonably consistent over a period of time.
Having regard to the evidence as a whole, I accept the applicant’s evidence that he performed work as a Uber driver out of financial necessity and despite difficulties caused by his ongoing back symptoms which ultimately necessitated him completely ceasing to perform that work. Further, I am satisfied that the applicant has not performed any other work nor earned any other income during the relevant periods as a result of him having no current work capacity due to the injury.
Having regard to the evidence as a whole, I do not accept the respondent’s submission that the applicant’s receipt of JobSeeker payments demonstrates that he had work capacity during the relevant periods.
Having regard to the evidence as a whole, I accept that the applicant ceased work Uber driving because of his back symptoms since 1 June 2023.
Considering the evidence as a whole, I am satisfied that:
(a) during the relevant periods that the applicant did perform work as an Uber driver, the applicant had a present inability arising from the injury such that the applicant was not able to return to work in the applicant’s pre-injury employment, but the applicant was able to return to work in suitable employment, but the weekly amount that the applicant had the capacity to earn in that employment was less than the weekly amount that the applicant had the capacity to earn in his pre-injury employment immediately before the injury;
(b) during the relevant periods that the applicant did not perform work as an Uber driver, the applicant had a present inability arising from the injury such that the applicant was not able to return to his pre-injury employment, and
(c) the applicant is likely to continue indefinitely to have no current work capacity.
Accordingly, I find that the applicant had no current work capacity during the relevant periods, with the exception of those periods that the applicant performed work as an Uber driver when he had current work capacity. Further, I find that the applicant is likely to continue indefinitely to have no current work capacity
The applicant has not been paid any weekly compensation to date.
I accept the indexation of PIAWE which has been calculated by the applicant as set out in the applicant’s updated wages schedule.
I do not accept the respondent’s submissions that a deduction should be made in relation to JobKeeper payments pursuant to cl 10 of Schedule 6 to the 1987 Act. There is no evidence that the applicant received JobKeeper payments.
On that basis, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 30 November 2019 to 29 February 2020, pursuant to ss 33 and 36 of 1987 Act as follows:
Dates
PIAWE
indexed% of PIAWE
Amount of PIAWE
Deductible amount “D”
Earnings “E”
Entitlement
30/11/19 -
29/02/20$1,772.27
95%
$1,683.66
$0.00
$372.03[1]
$1,311.63
[1] Average weekly wage calculated as follows: 01/12/19 – 30/06/20 (30 weeks) divided by total income of $11,161 in 2020 FY for Uber driving = $372.03 per week.
I calculate the applicant’s entitlement to weekly compensation in respect of the period from 1 March 2020 to 28 May 2022, pursuant to ss 33 and 37 of 1987 Act as follows:
Dates
PIAWE
(indexed)% of PIAWE
Amount of PIAWE
Deductible amount “D”
Earnings “E”
Entitlement
01/03/20 – 30/03/20
$1,772.27
80%[2]
$1,417.82
$0.00
$372.03
$1,045.79
01/04/20 – 30/06/20
$1,790.70
80%
$1,432.56
$0.00
$372.03
$1,060.53
01/07/20 – 30/09/20
$1,790.70
80%
$1,432.56
$0.00
$779.73[3]
$652.83
01/10/20 – 30/03/21
$1,790.70
80%
$1,432.56
$0.00
$779.73
$652.83
01/04/21 – 30/06/21
$1,842.27
80%
$1,473.82
$0.00
$779.73
$694.09
01/07/21 – 30/09/21
$1,842.27
80%
$1,473.82
$0.00
$0.00
$1,473.82
01/10/21 – 07/10/21
$1,864.20
80%
$1,491.36
$0.00
$0.00
$1,491.36
08/10/21 – 14/10/21
$1,864.20
80%
$1,491.36
$0.00
$232.99[4]
$1,258.37
15/10/21 – 31/01/22
$1,864.20
80%
$1,491.36
$0.00
$0.00
$1,491.36
01/02/22 – 28/02/22
$1,864.20
80%
$1,491.36
$0.00
$712.40[5]
$778.96
01/03/22 – 30/03/22
$1,864.20
80%
$1,491.36
$0.00
$2,058.15[6]
$0.00
01/04/22 – 30/04/22
$1,898.50
80%
$1,518.80
$0.00
$1,068.21[7]
$450.59
01/05/22 – 28/05/22
$1,898.50
80%
$1,518.80
$0.00
$2,091.13[8]
$0.00
[2] On the basis that the applicant concedes that because there is no evidence before the Commission with respect to the number of hours worked while Uber driving, the entitlement to weekly compensation pursuant to s 37 should be based on 80% of the PIAWE less actual earnings.
[3] Average weekly wage calculated as follows: 01/07/20 – 30.06.21 (52 weeks) divided by total income of $40,546 in 2021 FY for Uber driving = $779.73 per week.
[4] Average weekly wage calculated as follows: October 2021 Uber payments extracted from relevant bank statement, i.e. total $465.98 on 13/10/21 and 14/10/21.
[5] Average weekly wage calculated as follows: February 2022 Uber payments extracted from relevant bank statement, i.e. total $2,849.60/4 = $712.40 per week.
[6] Average weekly wage calculated as follows: March 2022 Uber payments extracted from relevant bank statement, i.e. total $8,232.60/4 = $2,058.15 per week.
[7] Average weekly wage calculated as follows: April 2022 Uber payments extracted from relevant bank statement, i.e. total $4,272.85/4 = $1,068.21 per week.
[8] Average weekly wage calculated as follows: May 2022 Uber payments extracted from relevant bank statement, i.e. total $8,364.52/4 = $2,091.13 per week.
Further, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 29 May 2022 to 30 June 2022, pursuant to ss 33 and 38 of 1987 Act as follows:
Dates
PIAWE
(indexed)% of PIAWE
Amount of PIAWE
Deductible amount “D”
Earnings “E”
Entitlement
29/05/22 – 31/05/23
$0.00[9]
01/06/23 – 30/09/23
$2,043.72
80%
$1,634.98
$0.00
$0.00
$1,634.98
01/10/23 – 30/03/24
$2,092.16
80%
$1,673.73
$0.00
$0.00
$1,673.73
01/04/24 to 29/11/24
$2,129.61
80%
$1,703.69
$0.00
$0.00
$1,703.69
[9] I note that the applicant received numerous Uber payments during this period. The applicant concedes that because there is no evidence before the Commission with respect to the number of hours worked while Uber driving, the applicant cannot establish that he satisfies the requirements of s 38 in respect of those periods that he was Uber driving. The applicant ceased work Uber driving because of his back symptoms since 1 June 2023.
In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.
Summary
The Commission finds that, as a result of the lumbar spine injury:
(a) from 30 November 2019 to 30 June 2021, the applicant had current work capacity;
(b) from 1 July 2021 to 7 October 2021, the applicant had no current work capacity;
(c) from 8 October 2021 to 14 October 2021, the applicant had current work capacity;
(d) from 15 October 2021 to 31 January 2022, the applicant had no current work capacity;
(e) from 1 February 2022 to 28 May 2022, the applicant had current work capacity;
(f) from 1 June 2023 to date, the applicant had no current work capacity, and
(g) the applicant is likely to continue indefinitely to have no current work capacity.
On the basis that the applicant effectively conceded that he cannot satisfy the requirements of s 38 in respect of the period from 29 May 2022 to 31 May 2023, I make no determination in relation to the applicant’s work capacity for that period.
The respondent is to pay the applicant weekly payments of compensation pursuant to s 36(2) of the 1987 Act as follows:
(a) $1,311.63 per week from 30 November 2019 to 29 February 2020.
The respondent is to pay the applicant weekly payments of compensation pursuant to s 37(2) of the 1987 Act as follows:
(a) $1,045.79 per week from 1 March 2020 to 30 March 2020;
(b) $1,060.53 per week from 1 April 2020 to 30 June 2020;
(c) $652.53 per week from 1 July 2020 to 30 March 2021;
(d) $694.09 per week from 1 April 2021 to 30 June 2021;
(e) $1,473.82 per week from 1 July 2021 to 30 September 2021;
(f) $1,491.36 per week from 1 October 2021 to 7 October 2021;
(g) $1,258.37 per week from 8 October 2021 to 14 October 2021;
(h) $1,491.36 per week from 15 October 2021 to 31 January 2022;
(i) $778.96 per week from 1 February 2022 to 28 February 2022;
(j) $0.00 per week from 1 March 2022 to 30 March 2022;
(k) $450.59 per week from 1 April 2022 to 30 April 2022, and
(l) $0.00 per week from 1 May 2022 to 28 May 2022.
The respondent is to pay the applicant weekly payments of compensation pursuant to s 38(2) of the 1987 Act as follows:
(a) $0.00 per week from 29 May 2022 to 31 May 2023;
(b) $1,634.98 per week from 1 June 2023 to 30 September 2023;
(c) $1,673.73 per week from 1 October 2023 to 30 March 2024, and
(d) $1,703.69 per week from 1 April 2024 to 29 November 2024.
The parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.
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