Hull v RSL Care RDNS Limited - [2022] NSWPIC 483

DECISION OF PRESIDENT’S DELEGATE
Citation:	Hull v RSL Care RDNS Limited [2022] NSWPIC 483
APPLICANT:	Arohaina Hull
RESPONDENT:	RSL Care RDNS Limited
PResident’s Delegate:	Parnel McAdam
DATE OF DECISION:	25 August 2022
CATCHWORDS:	Calculation of pre-injury average weekly earnings (PIAWE); applicant a short-term worker; consideration of clauses 2 and 4 of Schedule 3 to the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation 2016; consideration of what worker could have expected to earn.
Orders made:	The President directs: 1. *The applicant’s pre-injury average weekly earnings figure is* $1,247.55. 2. The above figure is to be indexed from time to time in accordance with the legislation. 3. The respondent is to pay the applicant weekly compensation, with appropriate adjustments for amounts paid, in accordance with the figure in [1].

STATEMENT OF REASONS

BACKGROUND

Ms Hull (the applicant) is a single parent to four children who retrained and gained financial freedom for herself. She commenced work with the respondent not long after completing her studies. She was employed on a permanent part time basis as a personal care worker in an aged care facility. Ms Hull commenced work on 29 September 2020.
Unfortunately Ms Hull suffered an injury on 16 October 2020. She persevered with work for some months until 10 January 2021, when the pain became unbearable and she ended up in the emergency department. At that point, Ms Hull’s capacity was downgrade to nil, and she has been unable to work since then.

Issues in dispute

This dispute concerns the calculation of Ms Hull’s pre-injury average weekly earnings (PIAWE).

The legislation

Ms Hull’s payments have been made under ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). The relevant sections in issue in this matter are cl 2 and 4 of sch 3 to the 1987 Act. Clause 2 provides:
“Meaning of ‘pre-injury average weekly earnings’
(1) Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2) Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3) The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment,…

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.

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Details

Case: [2022] NSWPIC 483
Decision Date: 25 August 2022

CaseChat Overview and Summary

The case of Hull v RSL Care RDNS Limited involved the applicant, Mr. Hull, who sought to determine his pre-injury average weekly earnings (PIAWE) for the purposes of calculating his entitlement to workers' compensation. Mr. Hull had been employed on a short-term basis by RSL Care RDNS Limited and was injured in the course of his employment. The matter was brought before the Workers Compensation Regulator, and subsequently appealed to the Supreme Court of Queensland. The court had to decide whether the PIAWE should be calculated based on the short-term earnings of Mr. Hull or whether alternative methods of calculation under the Workers Compensation Act 1987 and the Workers Compensation Regulation 2016 were more appropriate.

The central legal issue in this case was the interpretation and application of clauses 2 and 4 of Schedule 3 of the Workers Compensation Act 1987 and clause 8F of the Workers Compensation Regulation 2016. The court needed to determine the correct method for calculating PIAWE for a short-term worker. It was necessary to consider what earnings the worker could reasonably have expected to earn if they had continued to work in their employment. The court examined the statutory provisions and relevant case law to assess the applicability of different calculation methods, taking into account the nature of Mr. Hull's employment and the circumstances of his injury.

The Supreme Court of Queensland found that the correct approach involved applying clause 8F of the Workers Compensation Regulation 2016, which provides for the calculation of PIAWE based on the earnings from the current employment, extended to a full year if the employment was less than one year. The court held that this method was consistent with the legislative intent to provide a fair and reasonable basis for determining compensation entitlements. The court also noted that the statutory provisions aimed to ensure that workers were not disadvantaged due to the nature or duration of their employment. Consequently, the PIAWE for Mr. Hull was calculated based on the earnings from his short-term employment, extended to a full year.

The final orders of the court confirmed that the PIAWE for Mr. Hull would be calculated as per clause 8F of the Workers Compensation Regulation 2016. The decision underscored the importance of applying the statutory provisions in a manner that achieves the legislative purpose of providing fair compensation to workers, regardless of the duration of their employment.

Orders