Iqbal v Hotel Operations Solutions Pty Ltd
[2023] NSWPIC 48
•10 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Citation: | Iqbal v Hotel Operations Solutions Pty Ltd [2023] NSWPIC 48 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| APPLICANT: | Mohammed Javed Iqbal | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| RESPONDENT: | Hotel Operations Solutions Pty Ltd | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Member: | Rachel Homan | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| DATE OF DECISION: | 10 February 2023 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly compensation from 7 October 2010 to date and continuing; quantification of capacity and entitlement to weekly compensation; application of 2012 amendments; whether existing recipient; applicant assessed as having more than 30% permanent impairment in 2022 and now a worker with highest needs; application of the transitional provision in clause 2 of Schedule 8 to the Workers Compensation Regulation 2010 (Regulation); Meat Carter Pty Ltd v Melides; section 38A(1) of the Workers Compensation Act 1987; Held – applicant was partially incapacitated until 10 April 2012 and totally incapacitated thereafter; applicant not an existing recipient; clause 2 of Schedule 8 to the Regulation did not apply until Medical Assessment Certificate issued in 2022; awards for weekly compensation at varying rates. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| determinations made: | 1. From 7 October 2010 to 10 April 2012 the applicant was partially incapacitated for work as a result of the injury on 7 October 2010 (deemed). 2. From 11 April 2012 to date and continuing, the applicant has been totally incapacitated for work as a result of the injury on 7 October 2010 (deemed). | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
ORDERS MADE: | 3. The respondent to pay the applicant weekly compensation in accordance with the Table below:
4. The respondent to have credit for payments of weekly compensation already made during the period. 5. The parties have liberty to apply with respect to the mathematical calculations in the Table above within seven days. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
STATEMENT OF REASONS
BACKGROUND
Mr Mohammed Javed Iqbal (the applicant) was employed as a room attendant by Hotel Operations Solutions Pty Ltd (the respondent) between October 2008 and March 2009 and again between August 2009 and October 2010.
On 2 November 2020, the applicant commenced proceedings in the former Workers Compensation Commission seeking weekly compensation, s 60 expenses and lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). The proceedings related to an alleged injury to the applicant’s cervical spine and lumbar spine due to the nature and conditions of the applicant’s employment with the respondent. The applicant also claimed a consequential gastrointestinal condition and surgical scarring as a result of the alleged injury.
Liability for the alleged injury and consequential gastrointestinal condition had been disputed in notices issued by the respondent’s insurer on 21 September 2012, 8 November 2012,
6 April 2018 and 5 February 2019.On 24 February 2021, the Workers Compensation Commission issued a Certificate of Determination dealing with the liability dispute. It was determined that the applicant sustained an injury to his cervical spine pursuant to s 4(b)(ii) of the 1987 Act and a consequential gastrointestinal condition as a result of that injury. The allegation of injury to the lumbar spine was not accepted. Orders were made remitting the matter for referral to an Approved Medical Specialist for an assessment of the degree of permanent impairment resulting from the accepted injury.
The Certificate of Determination was the subject of an appeal lodged on 22 March 2021 in the Presidential Unit of the Personal Injury Commission (the Commission)[1]. On
15 November 2021, Snell DP confirmed the Certificate of Determination dated24 February 2021.[1] The Personal Injury Commission Act 2020 commenced on 1 March 2020. The matter came before the Presidential member of the Personal Injury Commission pursuant to cl 14A and 14D of Sch 1 to the Personal Injury Commission Act 2020.
The matter then proceeded to an assessment by a Medical Assessor, Dr T Michael Long, in accordance with the orders made on 24 February 2021. On 2 March 2022, a Medical Assessment Certificate (MAC) was issued by Medical Assessor Long certifying the applicant as having 31% whole person impairment (WPI) as a result of the injury of 7 October 2010 (deemed).
The applicant lodged an (out of time) appeal from the determination of the Presidential Member on 4 March 2022. On 4 August 2022, the Court of Appeal made orders extending the time for the filing of an appeal and dismissing the appeal.
The matter returned to the Commission for teleconference on 13 October 2022. On that occasion, consent orders were issued dealing with the claim for lump sum compensation pursuant to s 66 of the 1987 Act in accordance with the MAC. The claim for compensation pursuant to s 67 of the 1987 Act was discontinued. As the parties were unable to reach agreement with respect to the outstanding claims for weekly compensation and s 60 expenses, the matter was referred to conciliation conference and arbitration hearing.
The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 28 November 2022. The applicant was represented by Mr Dewashish Adhikary of counsel, instructed by Mr Thomas Hunter-Leahy. The respondent was represented by
Ms Claire Roberts of counsel, instructed by Ms Casey Bray. A representative from the insurer was also present.During the conciliation conference, the claim for s 60 expenses was discontinued. The parties were unable to reach agreement with respect to the claim for weekly compensation. The matter was, however, unable to proceed to arbitration hearing as Ms Roberts became unwell.
A timetable was established for the service and lodgement of written submissions and the parties were informed of my intention to determine the outstanding dispute with respect to the claim for weekly compensation at the conclusion of that timetable.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) the extent and quantification of incapacity resulting from the accepted injury in the period from 7 October 2010 to date and continuing.
PROCEDURE BEFORE THE COMMISSION
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 have 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
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) written submissions and documents attached to Applications to Admit Late Documents lodged by the applicant on:
(i)3 November 2020;
(ii)17 November 2020;
(iii)8 December 2020;
(iv)5 January 2021, and
(v)6 January 2021;
(d) written submissions lodged by the respondent on 19 January 2021;
(e) MAC issued by Medical Assessor Long on 2 March 2022;
(f) documents attached to an Application to Admit Late Documents lodged by the applicant on 3 November 2022;
(g) documents attached to an Application to Admit Late Documents lodged by the respondent on 3 November 2022;
(h) written submissions lodged by the applicant on 5 December 2022;
(i) written submissions lodged by the respondent on 13 December 2022, and
(j) written submissions in reply lodged by the applicant on 20 December 2022.
A summary of the lay and medical evidence before the Commission as at the date of the Certificate of Determination issued on 24 February 2021 is set out in the statement of reasons accompanying that Certificate. I do not propose to repeat that summary here. This statement of reasons is to be read together with the earlier statement of reasons.
It is noted that after the Certificate of Determination dated 24 February 2021 was issued, the applicant made several applications to have additional evidence put before the Presidential Member and the Medical Assessor. Those applications have been determined separately by the Presidential Member in his determination of 15 December 2021 and by Member Peacock in an ex-tempore determination on 24 January 2022. Those documents have not formed part of this determination.
Medical Assessment Certificate
Medical Assessor Long in his MAC issued on 2 March 2022, recorded that the applicant’s current symptoms included pain in the left and right upper limbs and profound weakness of the left limb. The applicant had variable numbness involving the fingers and was unable to perform fine movement with the fingers on the right hand. The applicant was continually dropping objects from his dominant right hand. The applicant continued to have bouts of epigastric pain.
Medical Assessor Long made an assessment of 31% WPI, including 2% WPI, for impairment of activities of daily living. The applicant was restricted from his usual household tasks and had difficulty performing other tasks.
FINDINGS AND REASONS
Application of the 2012 amendments
A preliminary issue requiring consideration is the application of the 2012 amendments to the weekly payments provisions.
The weekly payments amendments commenced on 1 October 2012 and have retrospective operation except where there is specific provision to the contrary. Clause 3 of the transitional provisions in Part 19H of Schedule 6 to the 1987 Act provided that except as provided by Part 19H or the Regulations the amendments apply to both injuries and claims made before the commencement of the amendment.
Clause 6 of the transitional provisions in Part 19H provided that an “existing recipient of weekly payments” is entitled to weekly compensation as if the weekly payments amendments had not been made, but only until the weekly payments provisions commence to apply as provided in Div 2.
Clause 1 of the transitional provisions defined an “existing recipient of weekly payments” as:
“an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments.”
Special provision was made for existing recipients who were “seriously injured workers” in
cl 10 of Part 19H:“10 Special provision for seriously injured workers
(1) The weekly payments amendments apply from the commencement of those amendments to the compensation payable under Division 2 of Part 3 of the 1987 Act to an existing recipient of weekly payments who is a seriously injured worker.
(2) For the purposes of the application under this clause of the weekly payments amendments to a seriously injured worker, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount.”
The expression, “seriously injured worker” was defined in s 32A of the 1987 Act as:
“seriously injured worker means a worker whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
The Workers Compensation Amendment (Miscellaneous) Regulation 2012 inserted Schedule 8 into the Workers Compensation Regulation 2010. Part 1, cl 1(2) of Schedule 8 stated:
“The provisions of Part 19H of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this Part.”
Clause 2 of Schedule 8 to the Workers Compensation Regulation 2010 additionally provided:
“2 Weekly payments amendments—seriously injured workers
(1) If a worker is a seriously injured worker and a claim for compensation in respect of the worker’s injury was made before 17 September 2012, the following provisions apply:
(a) the weekly payments amendments apply to the compensation payable to the worker in respect of the injury (while the worker is a seriously injured worker) on and from 17 September 2012,
(b) the amount of the weekly payments of compensation payable to the worker pursuant to the weekly payments amendments is not to be less than the amount of the weekly payments of compensation that would have been payable to the worker had the weekly payments amendments not applied to the worker (having regard to the period for which the worker has been entitled to weekly payments and the effect this has on entitlement to weekly payments or the amount of weekly payments),
(c) the adjustment of the transitional amount (which the worker’s pre-injury average weekly earnings are deemed to equal)) under section 80 of the 1987 Act that occurs on 1 October 2012 is backdated to have effect on and from 17 September 2012 in respect of the compensation payable to the seriously injured worker on and from 17 September 2012,
(d) the amount of the weekly payments of compensation that would have been payable to the seriously injured worker had the weekly payments amendments not applied to the worker is to be determined as if the adjustment of any relevant amount under Division 6 of Part 3 of the 1987 Act that occurs on 1 October 2012 were backdated to have effect on and from 17 September 2012 in respect of the compensation payable to the worker on and from 17 September 2012.
(2) For the purposes of the application of the weekly payments amendments to a seriously injured worker whose claim for compensation was made before 1 October 2012, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount whether or not the worker is an existing recipient of weekly payments.”
This transitional provision was amended in cl 2 of Schedule 8 to the 2016 Regulation to reflect the terminology introduced in the Workers Compensation Amendment Act 2015 by referring to “workers with highest needs” rather than “seriously injured workers”.
The expression, “worker with highest needs” is defined in s 32A of the 1987 Act as:
“worker with highest needs means a worker whose injury has resulted in permanent impairment and—
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note—
Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
The applicant seeks weekly compensation from 7 October 2010, being the deemed date of injury, to date and continuing.
A list of payments attached to the Reply indicates that a claim was made and the applicant was paid weekly compensation after lodgement of his claim between 26 May 2012 and
21 September 2012.The respondent has identified in its written submissions that following the dispute notice issued on 21 September 2012, the applicant should have been but was not provided with a further two weeks of payments as notice. As a result, the respondent has, in the specific circumstances of this case, “conceded” that the applicant was an “existing recipient” as at
1 October 2012.The applicant submits, however, that he was not an “existing recipient”. The applicant refers to Senior Arbitrator Snell’s (as he then was) remarks in Komljenovic v Facility Management Solutions Pty Ltd[2] and Arbitrator Sweeney’s remarks in Boom Tong Tan v P.D. & V Soulios & L & H Rotsos t/as Brew Cade[3] and highlights the fact that he was not in actual receipt of weekly compensation payments as at the relevant time.
[2] [2013] NSWWCC 69 at [58].
[3] [2013] NSWWCC 203 at [22].
Having considered the parties’ submissions, it is my view that the respondent’s “concession” that the applicant was an “existing recipient” is not properly made.
The evidence in this case establishes that weekly payments actually ceased on
21 September 2012. Although the respondent had a statutory obligation under s 54 of the 1987 Act not to discontinue weekly payments without giving the applicant the prescribed two week period of notice, it is appears that obligation was not, in fact, complied with.In these circumstances, s 54(2) provided a remedy as follows:
“(2) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that:
(a) if no period of notice has been given—is equal to the amount of compensation, or additional compensation, that would have been payable during the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or
(b) if less than the prescribed period of notice has been given—is equal to the amount of compensation that would have been payable during the balance of the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced.”
Under s 54(2), the applicant had a right to recover an amount of compensation equal to the amount of compensation that would have been payable during the prescribed two week period of notice. The question is whether the expression, “in receipt of weekly payments of compensation” extends to encompass that right.
In Mohammadi v Chandler Macleod Group t/as Ready Workforce Pty Ltd[4] Arbitrator Capel observed:
“The proper interpretation of the clear and unambiguous language of the definition of an ‘existing recipient of weekly compensation’… is that the injured worker must actually be in receipt of weekly payments of compensation immediately before 1 October 2012, not merely have an accrued entitlement thereto. The words in the definition are ‘too specific’, to quote Fitzgerald JA [in Somerville], for any other interpretation. It would have been easy to include the words ‘or entitled to receive’ in the definition of the 1987 Act if that was the intention of the legislation, but that is not the case.”
[4] [2013] NSWWCC 75.
A similar approach was adopted in Komljenovic, to which the applicant refers, as well as a number of other arbitral decisions.
In Murphy v Cowra Jockey Club[5] (Murphy) a worker was entitled, immediately before
1 October 2012, to be paid weekly compensation pursuant to an award already in force at that time. The employer was not making the payments it was legally obliged to make pursuant to the binding award previously made against it. It was held, in those specific circumstances, that the worker was an existing recipient of weekly payments. Senior Arbitrator Snell, as he then was, found:“The failure of the definition of an ‘existing recipient of weekly payments’, in clause 1 of the transitional provisions, to deal with such a state of affairs, suggests that Parliament ‘failed to deal with an eventuality’. That eventuality was the situation of a worker who was entitled to be in receipt of weekly payments immediately before the relevant commencement of the amending Act, pursuant to an award binding on an employer, where the employer simply failed to make the payments it was legally obliged to make. It would be an ‘absurdity’ if the transitional provisions were construed so that a worker would be worse off, and an employer better off, due to the employer’s failure in this regard.
The definition should be construed on the basis that a worker is in receipt of weekly payments at the relevant time if he is either actually being paid weekly payments, or is entitled to such receipt pursuant to an award that is in force at the relevant time. In my view the words in the definition are ‘reasonably open to such a construction’.”
[5] [2013] NSWWCC 451.
The approach taken in Murphy was, however, distinguished in William v Rentokil Pty Ltd[6] where weekly payments ceased in March 2012 but a dispute notice was not issued in compliance with s 54 of the 1987 Act until after 1 October 2012. Arbitrator Egan commented:
“In Murphy, there was a positive and immediately enforceable (without any further agitation as to the facts) obligation on the respondent to pay the compensation. All
Mr Murphy had to do was take out a certificate of the determination and commence enforcement proceedings in a court of competent jurisdiction. In this case, however, the applicant had matters left unresolved at the relevant time in 2012. Although it seems that the medical certificates had been supplied, it is not apparent that the other factors required for an entitlement to arise have been met by the applicant. In accordance with Dulhunty, the absence of a notice does not mean that discontinuation is ineffective. The applicant, in order to establish any such right to weekly compensation had to establish his partial incapacity in both a physical and economic sense.”[6] [2014] NSWWCC 41.
Having regard to the authorities above, in the present case, I am not satisfied that the applicant’s right of recovery under s 54(2) amounts to him being “in receipt” of weekly compensation immediately before 1 October 2012.
I also note that it has been held in a number of cases that the expression “immediately before” can take on different meanings in different cases depending on how long the worker had been in receipt of weekly benefits[7]. I am not satisfied, however, in the present case that “immediately before” can be taken to encompass a date more than a week prior to
1 October 2012.[7] See, for example, Tan v P D & V Soulios & L & H Rotsos t/as Brew Cafe [2013] NSWWCC 203; De Carvalho Soares v Maxitherm Boilers Pty Ltd [2013] NSWWCC 425; and McAdam v Kororo Public School P&C Association [2013] NSWWCC 444.
I do not accept that the applicant was an “existing recipient of weekly payments” for the purposes of cl 6 of Part 19H.
The applicant submits that the 2012 amendments nonetheless applied to him on and from
17 September 2012. The applicant relies on cl 2 of Schedule 8 of the Workers Compensation Regulation 2016.There is no dispute between the parties that the degree of permanent impairment resulting from the injury was assessed to be more than 30% by Medical Assessor Long on
2 March 2022 and that the applicant is currently a “worker with highest needs”.The respondent disputes, however, the applicant’s view that cl 2 of Schedule 8 applies, submitting that the applicant was not a “worker with highest needs” (or “seriously injured worker”) as at 17 September 2012. The respondent submits that the language of the transitional provision involves a clear temporal element, reflected particularly in the inclusion of the words “while the worker is a worker with highest needs”. The respondent submits that the provision operates with equivalent effect to s 38A of the 1987 Act as found in Meat Carter Pty Ltd v Melides[8] (Melides), that is, a worker obtains the benefit of a determination that they are a worker of highest needs from the time of that determination, and not before.
[8] [2020] NSWCA 307.
The respondent noted that it had not located an authority involving specific consideration of this provision.
Interestingly, I note that notwithstanding its submissions as to the effect of cl 2 of Schedule 8, the respondent’s “updated wages schedule” adopts the transitional rate under cl 2(2) from
18 September 2012 onwards.In reply, the applicant submitted that the clause should not be read as requiring that the applicant satisfied the definition of a “worker with highest needs” as at 17 September 2012 by virtue of having an assessment over 30% as at that date. The applicant sought to distinguish the provisions presently under consideration from s 38A and the interpretation adopted in Melides.
I find some force in the respondent’s submissions. The applicant’s interpretation of the provision does not grapple with the use of the word “while” in the transitional provision. The use of that term indicates an acknowledgement that an injured worker may not at all times be a “worker with highest needs”. While this clearly accounts for workers who satisfied paragraphs (b) and (c) of the definition of a “worker with highest needs”, there is some uncertainty as to how the provision should be interpreted in the case of a worker who is injured and makes a claim before 17 September 2012 but who did not become “a worker with highest needs” until an assessment was made at a later date.
In Alexandrou v The ANI Corporation Limited [9] the worker was injured in 1987 and received compensation prior to the 2012 amendments. The worker was assessed as having 32% WPI in 2013. Like the respondent in this case, ANI argued that the worker was only entitled to the transitional rate once he had been assessed by the Approved Medical Specialist (AMS), which did not take place until 29 July 2013. The Arbitrator noted that all of the worker’s body parts had been assessed under the Table of Disabilities well before 17 September 2012 and there was no suggestion that the worker’s condition had deteriorated or materially changed. The Arbitrator found that Mr Alexandrou was a “seriously injured worker” on
17 September 2012 although his rights crystallised on assessment by the AMS on29 July 2013.[9] Alexandrou v The ANI Corporation Limited [2014] NSWWCC 136.
In the present case I would not accept a submission that the applicant had a degree of permanent impairment greater than 30% at the time of the amendments, albeit one which had not yet crystalised. A significant factor in Medical Assessor Long’s assessment was the fact that the applicant underwent a C5-6, C6-7 anterior discectomy and fusion in
September 2016. There is no evidence before me to suggest that the applicant would have been assessed as having a degree of permanent impairment greater than 30% at any time prior to that surgery.In any event, the approach taken in Alexandrou ought now be considered in light of the subsequent judgement of the Court of Appeal in Melides.
Section 38A was introduced by the Workers Compensation Amendment Act 2015 and makes special provision for worker with highest needs:
“38A Special provision for workers with highest needs
(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.
(2) If the amount specified in subsection (1) is varied by operation of Division 6A, a weekly payment of compensation payable to a worker with highest needs before the date on which the variation takes effect is, for any period of incapacity occurring on and after that date, to be determined by reference to that amount as so varied.”
Clause 9 of Part 19I of Schedule 6 to the 1987 Act provided:
“9 Weekly payments
(1) Section 38A of the 1987 Act extends to the determination of the compensation payable in respect of any period of incapacity occurring before the commencement of that section.
(2) The regulations may make provision for or with respect to the adjustment of the amount of weekly payments of compensation payable to an injured worker as a result of the operation of section 38A of the 1987 Act and this clause.
(3) Without limiting subclause (2), the regulations may prescribe the period within which any additional amount payable to an injured worker as a result of the adjustment is to be paid.”
The transitional provisions in cl 35 of Schedule 8 to the 2016 Regulation provided:
“35 Weekly payments—workers with highest needs
(1) Section 38A of the 1987 Act does not apply to the determination of the compensation payable in respect of any period of incapacity occurring before 17 September 2012.
(2) Section 38A of the 1987 Act does not apply to a worker whose pre-injury average weekly earnings have been deemed to be equal to the transitional amount for the purposes of the application under clause 9 or 10 of Part 19H of Schedule 6 to the 1987 Act of the weekly payments amendments (within the meaning of that Part) to the worker.”
The Court of Appeal in Melides found that the appellant was correct in submitting that
s 38A(1) has a temporal aspect and the special rate of weekly compensation was only payable at a time when the worker is a worker with highest needs. The worker in that case was not a worker with highest needs before the assessment on 9 June 2017:“It is only if a determination of the amount of weekly payments of compensation payable to a worker with highest needs results in an amount less than the prescribed amount that a higher amount is payable. That assessment is to be made from time to time as amounts of weekly payments of compensation are payable. Unless at that time the worker is a “worker with highest needs”, then, increased amounts of compensation are not payable. The respondent was not a worker with highest needs (as defined) before 9 June 2017.”[10]
[10] Per White JA at [41].
The Court held that whether s 38A is engaged depends on whether the definition of “worker with highest needs” is satisfied at the time weekly compensation payments are payable.
Applying these observations to cl 2 of Schedule 8, I find that the weekly payments amendments apply to the compensation payable to the applicant in respect of the injury only while the applicant is a worker with highest needs. The applicant in this case was not a worker with highest needs until 2 March 2022.
I further find that from 2 March 2022 onwards, pursuant to cl 2(2) of Schedule 8, the applicant’s pre-injury average weekly earnings (PIAWE) are deemed to be equal to the transitional amount.
Before that date, cl 3 of Schedule 8 to the Regulation applies:
“3 Weekly payments amendments—other than workers with highest needs
(1) If a claim for compensation in respect of a worker’s injury was made before 1 October 2012, the weekly payments amendments and the relevant transitional arrangements do not apply to the compensation payable in respect of the injury until 1 January 2013.”
The 2012 amendments thus applied to the applicant on and from 1 January 2013.
Capacity
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable shall include a weekly payment during the incapacity.
The applicant has given evidence, and I accept, that he ceased employment with the respondent due to symptoms resulting from his injury. The applicant stated that his general practitioner had advised that he get rest and find a more suitable job and so the applicant resigned.
A clinical note recorded by the applicant’s general practitioner on 8 October 2010 described pains in the applicant’s dominant right fingers and hand, difficulty moving and holding objects and sleep disturbance due to pain.
Shortly afterwards, a Centrelink Job Capacity Assessment Report, dated 20 October 2010, reported a diagnosis of:
“Pains and stiffness, strained hand (client reported onset May 2010). Current Treatment: Anti-inflammatory medication (mobic). Future Treatment: Client reported he has been advised to take medication and rest his hand. His GP will review his condition in a few months; if his condition has not improved he stated he will be referred to a specialist for further assessment, nerve conduction studies, or neck MRI.”
A temporary work capacity of 8-14 hours per week until 11 January 2011 was recommended with a baseline work capacity of 15-22 hours:
“Rationale: The severity and chronicity of symptoms are anticipated to reduce baseline work capacity to 15-22 hours per week. The client reported pain and numbness in his right (dominant) hand/upper limb which significantly affects his lifting, carrying and manual dexterity. He stated he remains capable of typing however has difficulty doing up buttons, opening bottles/jars, using a razor to shave, and brushing his teeth. He reported reduced grip strength and difficulty with vacuuming. Suitable work: Light skilled (W01) Examples: Doctor.”
The report stated:
“Mr Iqbal reported his most recent employment experience was on 07/10/2010, when he was working as a housekeeper and hotel room attendant. He stated he has approximately 3-4 year experience in this style of work, working casually, part time and more recently full time. He reported he ceased due to exacerbation of his hand and finger sprain. He reported he is currently voluntarily working as an observing G.P. when he can, with local doctor's in his area. He expressed a keen motivation to find full time work as a doctor.”
A further Job Capacity Assessment Report was completed for Centrelink on
31 January 2011. In that report, the applicant was said to have a baseline work capacity of 30+ hours per week in light skilled work:“Client's current capacity remains at 30+ hpw as permanent medical condition right hand sprain does not significantly impact on client's functioning if in suitable employment.”
The applicant’s work capacity was reduced to 0-7 hours per week in a Job Capacity Assessment Report dated 11 April 2012.
Orthopaedic specialist, Dr Vijay Maniam certified the applicant as totally unfit for work as a result of his cervical spine injury from 24 May 2012 to 30 July 2012.
The applicant’s general practitioner, Dr Abdalla, subsequently issued a WorkCover certificate of capacity certifying the applicant as totally unfit for work as a result of the injury from
7 October 2010 to 30 July 2012. Although Dr Abdalla treated the applicant during this period, the backdated certificate must be compared to the more contemporaneous assessments of the applicant’s capacity in the Centrelink reports.The applicant’s statement evidence given on 31 July 2012 was that for a period of 1.5 years after ceasing work for the respondent, he studied for the Australian Medical Council clinical examination and applied to hospitals for positions without success. The applicant sat the exam in March 2011 but was unsuccessful. During this period, the applicant was receiving Centrelink Newstart payments.
Both the applicant’s evidence and the contemporaneous assessments indicate that between 7 October 2010 and 10 April 2012 the applicant had capacity to engage in suitable employment. The applicant was undertaking voluntary observational work, studying, applying for jobs and indicating a willingness to work within his physical restrictions. Although the applicant proved unsuccessful in those endeavours, I am not satisfied that this was due to a lack of capacity to perform any suitable work but rather the narrow focus of his endeavours.
I accept that the applicant was unsuccessful in gaining employment despite the assistance of MTC Work Solutions. However, the applicant’s evidence is that he set a goal of gaining work as a general practitioner. The applicant was attempting to gain accreditation and work in a difficult and highly competitive field. Whilst I would be prepared to accept that the applicant’s symptoms may in fact have influenced his ability to gain accreditation and work as a doctor, I do not accept that there was no other light skilled or unskilled work he could do.
I accept on the evidence that from 7 October 2010, that the applicant lacked capacity to perform manual work requiring heavy lifting. This excluded the type of work he was performing for the respondent. The evidence does, however, suggest that the applicant could perform entry level clerical or administrative work, for example at a rate of at least $18 per hour, consistently with his ability to study for medical exams, his English language skills[11] and the opinion given by Dr Dias on 13 September 2012:
“On the basis of the available evidence, and today's history and examination, Mr Iqbal is capable of performing full time duties (normal hours and normal days). He should be restricted from lifting more than 4kg, any repetitive manual work and overhead work, and from driving a commercial heavy motor vehicle. He would be fit for mainly sedentary duties. The employment fields that would be open to him include administrative and clerical duties. He may be able to find employment in health related industries (for which he may be qualified) if the duties are mainly sedentary in nature.”
[11] See TAFE NSW, Statement of Attainment dated 20 December 2010 at p 23 of the Application to Admit Late Documents lodged by the applicant on 3 November 2022 and Occupational English Test Statement of Results dated 30 October 2009 at p26.
There is clearly some conflict between Dr Dias’ opinion as to capacity and other evidence, including the certifications from Dr Maniam and Dr Abdalla and the Centrelink reports. I have also given weight to the contemporaneous accounts of the applicant’s symptoms including
Dr Dias’ own account:“The pain in his right and left upper limbs are associated with pins and needles and numbness. He reports that his neck pain associated with dizziness which limits his functional and mental capacity… He reports that he has chronic pain most of the time with a baseline of 6-8/10 on the visual analogue scale. Exacerbating factors include cold weather and physical activity. He reports that his sleep is disturbed and poor as a result of these pain symptoms and on average he achieves about 4-5 hours of sleep per night. Mr Iqbal estimates that he can only lift about 1kg beyond which he starts to feel pain in his hands and neck. He reports that he is able to walk for about 10 minutes on a warm day without pain. He reports that he is able to stand about 5 minutes on a warm day without holding onto anything. He reports that he is able to sit for 10-20 minutes without feeling discomfort. Mr Iqbal does not drive because he does not have a driver's license.”
After careful consideration of the evidence and submissions, I find that the applicant was partially incapacitated from 7 October 2010 onwards. I accept that the applicant could not work in the same or comparable employment. I also accept that there is no evidence of any actual earnings in employment after that date. I do, however, find that the applicant had capacity to earn in suitable employment in the labour market reasonably accessible to him as follows:
(a) from 7 October 2010 to 11 January 2011, 8 hours per week at $18 per hour ($144), and
(b) from 12 January 2011 to 10 April 2012, 20 hours per week at $18 per hour ($360).
From 11 April 2012, having regard to the Centrelink Job Capacity Assessment Report of that date, the WorkCover certifications and the contemporaneous medical evidence, I accept that the applicant was totally incapacitated for work as a result of the accepted injury.
Weekly payments during partial incapacity
I have found that the applicant was partially incapacitated for work from 7 October 2010 to
10 April 2012. He is entitled to an award on that basis pursuant to s 40 of the 1987 Act as it stood prior to the 2012 amendments.The steps to be followed for the calculation of an injured worker’s entitlement to weekly payments pursuant to s 40 of the 1987 Act prior to the 2012 amendments were set out by the Court of Appeal in Mitchell v Central West Area Health Service[12] (Mitchell) as follows:
“(1) Determine the weekly amount the worker would probably have been earning but for the injury (s 40(2)(a));
(2) Determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury (s 40(2)(b)) based on the worker’s ability to earn in the general labour market reasonably accessible to the worker (s40(3)) and having regard to suitable employment for the worker within the meaning of section 43A;
(3) Subtract the figure derived from (2) from the figure derived from (1) (s 40(2));
(4) Decide whether and to what extent the reduction calculated above appears proper in the circumstances (s 40(1)), and
(5) Make an award in the amount arrived at in step 4.”
[12] (1997) 14 NSWCCR 526.
There is no agreement in the evidence as to the applicant’s probable earnings but for the injury. In calculating a worker’s probable earnings for the purposes of s 40(2)(a) it must be assumed that the worker but for the injury would have continued in the same or some comparable employment.
The applicant has asserted that his “current weekly wage rate” or “Pre-Injury Average Weekly Earnings” (PIAWE) was $546.50[13]. The respondent has put this figure at $517.10. The test for determining the current weekly rate under former s 42 of the 1987 Act is, however, different to that required in s 40(2)(a).
[13] Wages schedule at p 4 of the Application to Admit Late Documents lodged on 3 November 2022.
Correspondence dated 1 October 2013 from the respondent’s previous solicitors, indicates that the applicant was being paid $15.43 per hour before his injury but the rate had increased to $16.42 per hour. There is only one payslip in evidence which suggests that in the period 27 September 2010 to 10 October 2010, the applicant worked approximately 30 hours per week. Applying the higher hourly rate, the applicant’s probable earnings had he continued to work 30 hour per week would be $492.60. The payslip does, however, indicate that the applicant was paid a higher rate and did work on Sundays and Public Holidays. I accept that this should be factored into the applicant’s probable earnings.
The applicant’s figure of $546.50 is based on his PAYG Payment Summary for the 2010/11 financial year averaged over 16 weeks, being the 14 weeks the applicant actually worked plus two weeks to account for his annual leave entitlement. The respondent’s figure appears to average the PAYG Payment Summary amount over a slightly longer period.
In all the circumstances, I am satisfied that the applicant’s figure of $546.50 constitutes an appropriate reflection of the weekly amount the applicant would probably have been earning but for the injury.
I have determined above that for the purposes of s 40(2)(b), the following amounts should be deducted:
(a) from 7 October 2010 to 11 January 2011, $144 per week, and
(b) from 12 January 2011 to 10 April 2012, $360 per week.
Applying the third step in Mitchell results in the following amounts:
(a) from 7 October 2010 to 11 January 2011, $402.50 per week, and
(b) from 12 January 2011 to 10 April 2012, $186.50 per week.
The fourth step in Mitchell requires consideration of whether there are any discretionary matters that require the s 40 figure calculated to be reduced. In Australian Wire Industries Pty Ltd v Nicholson[14] (Nicholson), McHugh JA stated (at [54- 55]):
“The third step in the process requires the Compensation Court to look at the circumstances of the case. The weekly payment awarded must bear such relationship to the differential amount – which is the result of the exercise under the first and second steps – as under the circumstances of the case is proper. This third step therefore calls for the exercise of a judicial discretion of a kind with which courts have long been familiar. It is at this stage that the Compensation Court can and must examine all the facts. The matters which can be examined include such matters as retirement, other supervening illnesses or injuries, the personal employment history of the worker and so on. See Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 at 92f; Morgan v Commissioner of Railways (1972) 46 WCR (NSW) 33; Metropolitan Coal Co Ltd v Duffy [1966] 1 NSWR 379.”
[14] (1985) 1 NSWCCR 50.
In all the circumstances and having regard to the principles in Nicholson, I do not believe that there is any need to reduce the mathematical difference.
Weekly payments during total incapacity (after 26 weeks)
I have found that the applicant was totally incapacitated on and from 11 April 2012. In the case of an injured worker with total incapacity after 26 weeks, s 37(1) as in force prior to the 2012 amendments provided:
“37 Weekly payment during total incapacity—after first 26 weeks
(cf former s 9 (1), (4))
(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be:
(a) 90 per cent of the worker’s average weekly earnings, except that:
(i) the payment shall not exceed $235.20 per week”
In addition, the applicant s 37(1)(b) and (c) provided for the rate to be increased in respect of a dependent spouse and children. The evidence indicates that the applicant had a spouse at all relevant times. The applicant also had a dependent child born on 4 April 2011. The applicant’s second child was not born until 27 December 2017.
In accordance with s 37(1) as it then stood, the applicant would have been entitled from
11 April 2012 until 31 December 2012, to compensation at the statutory rate for a worker with a spouse and one dependent child.However, s 37(2) provided:
“The total weekly payment under subsection (1) shall not exceed the worker’s current weekly wage rate determined from time to time in accordance with section 42.”
For the reasons given above, I adopt the applicant’s figure of $546.50 as the current weekly rate. As the amounts under s 37(1) would have exceeded the applicant’s current weekly wage rate, I find that from 11 April 2012 until 31 December 2012, the applicant was entitled to weekly compensation pursuant to s 37(2) at his current weekly wage rate.
Post-2012 entitlement
Having already received or been entitled to receive greater than 13 weeks of payments but less than 130 weeks, the applicant’s entitlement from 1 January 2013 onwards commences in the second entitlement period.
I accept that from 1 January 2013, the applicant had no current work capacity. In those circumstances, s 37(1), as amended, relevantly provided:
“(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:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.”
The term ‘AWE’ was defined in s 35 of the 1987 Act to mean “the worker’s pre-injury average weekly earnings”.
The term ‘D’ was defined as meaning:
“the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker”.
The term ‘MAX’ refers to “the maximum weekly compensation amount” in s 35 of the 1987 Act.
Section 44C(1) of the 1987 Act defined “pre-injury average weekly earnings” as follows:
“(1) In this Division,
‘pre-injury average weekly earnings’, in respect of a relevant period in relation
to a worker, means the sum of:
(a) the average of the worker's ordinary earnings during the relevant period
(excluding any week during which the worker did not actually work and was
not on paid leave) expressed as a weekly sum, and
(b) any overtime and shift allowance payment that is permitted to be included
under this section (but only for the purposes of the calculation of weekly
payments payable in the first 52 weeks for which weekly payments are
payable).”
I accept that the applicant’s PIAWE should be the same as his current weekly wage rate, albeit subject to periodic adjustment. Applying the adjustment, the rate at 1 January 2013 would have been $574.50:
Indexation date
Indexation rate
Adjusted amount
1 April 2011
1.0115
$552.78
1 October 2011
1.0259
$567.10
1 April 2012
1.0060
$570.50
1 October 2012
1.0070
$574.50
In accordance with s 37(1), the applicant’s entitlement to weekly compensation from
1 January 2013 onwards is 80% of his PIAWE as periodically indexed.
Weekly compensation after the second entitlement period
Consistently with Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW[15] (Hochbaum), and in light of the assessment by Medical Assessor Long of a degree of permanent impairment more than 20%, the respondent has appropriately not submitted that the applicant ceased to be entitled to weekly compensation after either the conclusion of the 130 weeks period for the purposes of s 37 of the 1987 Act or after 260 weeks pursuant to s 39 of the 1987 Act.
[15] [2020] NSWCA 113.
After 130 weeks, which ceased on 4 April 2013, until 1 March 2022, the applicant is entitled to weekly compensation in accordance with s 38(6) at the rate of 80% of PIAWE as periodically indexed.
Worker with highest needs
It is not in dispute between the parties that on 2 March 2022 the degree of permanent impairment resulting from the accepted injury was assessed to be more than 30%.
From the date of this assessment, the applicant satisfied the definition of a “worker with highest needs” for the purposes of the special provision in s 38A of the 1987 Act as well as the transitional rate in cl 2 of Schedule 8 to the Regulation.
As at that date, the rate to which the applicant was entitled under s 38(6) was 80% of his PIAWE. Pursuant to cl 2(2) of Schedule 8, the applicant’s PIAWE are deemed to be equal to the transitional amount. The adjusted transitional amount was $1,125.20, 80% of which was $900.16.
The special rate under s 38A, as periodically adjusted, was at 2 March 2022 $871. That is, less than the rate of weekly payments to which the applicant was entitled under s 38(6). As a result, the special rate does not apply having regard to s 38A(1).
Calculation of rates
Having made the findings above, the rate of weekly payments to which the applicant has been entitled during the period 7 October 2010 to date and continuing is as follows:
PERIOD
RATE
PROVISION
7 October 2010 to 11 January 2011
$402.50 ($546.50-$144)
s 40
12 January 2011 to 10 April 2012
$186.50 (546.50 - $360)
s 40
11 April 2012 to 30 September 2012
$546.50
s 37(2)
1 October 2012 to 31 December 2012
$546.50
s 37(2)
1 January 2013 to 31 March 2013
$459.60 ($574.50 x 80%)
s 37 (post-2012 provisions)
1 April 2013 to 4 April 2013
$467.82 ($584.78 x 80%)
s 37
5 April 2013 to 30 September 2013
$467.82 ($584.78 x 80%)
s 38 (after 130 weeks)
1 October 2013 to 31 March 2014
$471.47 ($589.34 x 80%)
s 38
1 April 2014 to 30 September 2014
$480.15 ($600.19 x 80%)
s 38
1 October 2014 to 31 March 2015
$484.71 ($605.89 x 80%)
s 38
1 April 2015 to 30 September 2015
$488.34 ($610.43 x 80%)
s 38
1 October 2015 to 31 March 2016
$495.18 ($618.98 x 80%)
s 38
1 April 2016 to 30 September 2016
$497.90 ($622.38 x 80%)
s 38
1 October 2016 to 31 March 2017
$499.75 ($624.69 x 80%)
s 38
1 April 2017 to 30 September 2017
$507.05 ($633.81 x 80%)
s 38
1 October 2017 to 31 March 2018
$510.70 ($638.37 x 80%)
s 38
1 April 2018 to 30 September 2018
$518 ($647.50 80%)
s 38
1 October 2018 to 31 March 2019
$521.21 ($651.51 x 80%)
s 38
1 April 2019 to 30 September 2019
$526.69 ($658.36 x 80%)
s 38
1 October 2019 to 31 March 2020
$529.90 ($662.37 x 80%)
s 38
1 April 2020 to 30 September 2020
$535.41 ($669.26 x 80%)
s 38
1 October 2020 to 31 March 2021
$535.41 ($669.26 x 80%)
s 38
1 April 2021 to 30 September 2021
$550.82 ($688.53 x 80%)
s 38
1 October 2021 to 1 March 2022
$557.38 ($696.73 x 80%)
s 38
2 March 2022 to 31 March 2022
$900.16 ($1,125.20 x 80%)
s 38 (date MAC issued)
1 April 2022 to 30 September 2022
$914 ($1,142.50 x 80%)
s 38
1 October 2022 to date and continuing
$923.36 ($1,154.50 x 80%)
s 38
The respondent is to have credit for the weekly payments already made during the period above.
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