Jones v AAA Nextt Group Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v AAA Nextt Group Pty Limited [2023] NSWPIC 603
APPLICANT:	Joanne Louise Jones
RESPONDENT:	AAA Next Group Pty Limited
MEMBER:	Jill Toohey
DATE OF DECISION:	9 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments; accepted injury to right foot; applicant filed wages schedule and claimed payments in accordance with the schedule; respondent did not file a wages schedule; no dispute as to incapacity; dispute as to calculation of weekly payments; basis of the dispute by the respondent unclear; respondent did not dispute pre-injury average weekly earnings (PIAWE) or wages schedule; applicant proposed orders in accordance with the wages schedule; respondent proposed general orders as to PIAWE as indexed and section 36 and section 37 periods with liberty to apply if calculations could not be agreed; extensive negotiations at telephone conference and in conciliation; Held – orders proposed by the applicant made.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her right foot arising out of or in the course of her employment with the respondent on 22 September 2022. 2. The applicant had total or partial incapacity for employment at various times thereafter. 3. The respondent is to pay the applicant arrears of weekly benefits pursuant to ss 36 and 37 of the Workers Compensation Act 1987 as follows: (a) from 10 October 2022 to 25 December 2022 in the sum of $358.85 per week; (b) from 26 December 2022 to 1 January 2023 in the sum of $154.85 per week; (c) from 2 January 2023 to 12 February 2023 in the sum of $302.19 per week; (d) from 13 February 2023 to 19 February 2023 in the sum of $288.39 per week; (e) from 20 February 2023 to 12 March 2023 in the sum of $288.39 per week; (f) from 13 March 2023 to 19 March 2023 in the sum of $274.59 per week; (g) from 20 March 2023 to 26 March 2023 in the sum of $302.19 per week; (h) from 27 March 2023 to 2 April 2023 in the sum of $262.64 per week; (i) from 3 April 2023 to 9 April 2023 the sum of $389.90 per week; (j) from 10 April 2023 to 16 April 2023 in the sum of $369.20 per week; (k) from 17 April 2023 to 23 April 2023 in the sum of $230.68 per week; (l) from 24 April 2023 to 30 April 2023 in the sum of $353.10 per week; (m) from 1 May 2023 to 7 May 2023 in the sum of $215.50 per week; (n) from 8 May 2023 to 14 May 2023 in the sum of $291.20 per week; (o) from 15 May 2023 to 21 May 2023 in the sum of $339.30 per week; (p) from 22 May 2023 to 28 May 2023 in the sum of $308.22 per week; (q) from 29 May 2023 to 11 June 2023 in the sum of $328.00 per week; (r) from 12 June 2023 to 18 June 2023 in the sum of $344.92 per week, and (s) from 19 June 2023 to 23 June 2023 in the sum of $328 per week.

STATEMENT OF REASONS

BACKGROUND

On 22 September 2022, Joanne Jones (the applicant) was employed by AAA Next Group (the respondent) as an in-home support worker. She was employed on a casual basis and usually worked full-time, although her hours varied. She was changing bed sheets at a client’s home when she stepped on a battery pack attached to a sensor mat on the floor around the bed.
Ms Jones suffered injury to her right foot which her general practitioner diagnosed as likely stress fracture. She was given a moon boot and had an X-ray and MRI, and she had several sessions of physiotherapy.
Ms Jones’ general practitioner certified her as having no capacity for work from the date of her injury to 22 January 2023. From 23 January 2023 she was certified fit for light duties on reduced hours. Her hours gradually increased until 20 June 2023 when she resigned. Since 26 May 2023, she has been able to work eight hours a day, four days a week.
By letter dated 1 March 2023, the respondent accepted liability for Ms Jones’ injury. The respondent advised that it did not have enough information to fully calculate her pre-injury average weekly earnings (PIAWE) and it had used an interim rate of $982.26, giving a weekly payment of $933.15 for the purposes of s 36 of the Workers Compensation Act 1987 (1987 Act). The respondent advised that the PIAWE would be recalculated and adjusted if required once it had Ms Jones’ earnings information.
By a dispute notice issued on 14 March 2023, the respondent reduced the amount of
Ms Jones’ weekly payments with effect from 14 March 2023 on the basis that her PIAWE had been recalculated as $970.29. The effect was to reduce her weekly payments to $921.78 from 23 March 2023 in accordance with s 36 of the 1987 Act.
By letter dated 1 April 2023, the respondent advised that Ms Jones’ PIAWE had been adjusted in accordance with indexation on 1 April 2023. The adjusted PIAWE was $1,010 and her weekly payments would be adjusted accordingly to $808 from that date.
On 2 May 2023, Ms Jones’ solicitors requested review of the dispute notice that calculated Ms Jones’ PIAWE as $970.29. They advised that they calculated her PIAWE as $1,321.09, and her indexed PIAWE from 1 April 2023 should be $1380, rather than $1,010. They enclosed the offer of casual employment dated 6 May 2022, Ms Jones’ pay slips for the period 9 May 2022 to 9 October 2022, and a PIAWE schedule with their calculations of her PIAWE.
By a dispute notice dated 12 May 2023, the respondent reduced the amount of Ms Jones’ weekly payments with effect from 23 August 2023. The respondent set out the calculations by which it arrived at the initial PIAWE of $970.29 and the “correct PIAWE calculation” of $880. The respondent stated it had identified that the indexation had not been completed and Ms Jones was entitled to this from 1 October 2022 . Her “PIAWE rate” had been increased accordingly to $949. The effect was to reduce her weekly payments to $759.20 with effect from 23 August 2023 in accordance with s 37 of the 1987 Act. The respondent noted that Ms Jones had capacity for “some sort of work”.
By an Application to Resolve a Dispute (ARD) lodged on 19 September 2023, Ms Jones commenced these proceedings, claiming weekly payments from 26 September 2022 to
[1] ARD page 33.
[2] ARD page 34.
[3] ARD pages 37-70.
2 July 2023 and setting out the amount claimed for each week of that period. The ARD attached a Schedule of Indexed PIAWE,[1] Applicant’s Wages Schedule[2], and pay records for the period 25 May 2022 to 2 July 2023.[3]

ISSUES FOR DETERMINATION

There is no dispute as to injury. Save for a dispute as to the precise period, there is no dispute as Ms Jones’ incapacity. There is no dispute that the PIAWE for the relevant period is $1,360.
The parties agree that the following issues remain in dispute:
(a) the precise period of entitlement, and
(b) the calculation of weekly payments.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a telephone conference before me on 23 October 2023. The conference went for over one hour. Mr William Langler appeared on behalf of Ms Jones. He advised that the PIAWE as set out in the wages schedule provided by Ms Jones was no longer disputed but the respondent did not agree with the calculation of her “arrears”.
Ms Emily Gorry for the respondent confirmed that the PIAWE was agreed at $1,360 but the respondent did not accept the applicant’s calculations.
Ms Gorry proposed that orders be made to the effect that Ms Jones be paid weekly payments to date based on the PIAWE, with credit to the respondent for payments made.
Mr Langler proposed that orders be made to the effect that the respondent pay Ms Jones weekly payments totalling $12,261.34 pursuant to ss 36 and 37 of the Act as set out in the ARD with a notation to the effect that she would acknowledge that amount represented her full entitlement to weekly payments to date.
For reasons that were not entirely clear to me, the respondent did not accept the amount claimed. Mr Langler suggested that the respondent’s computer system would not accept the calculation but it was not clear if this was a factor. In any event, parties could not reach agreement. They agreed that a dispute remained as to the actual period of entitlement and the sum of the “arrears”.
There may have been some misunderstanding at the telephone conference as to the dispute regarding the period of entitlement. I understood that it was agreed that the period was from 26 September 2022 but that some subsequent periods up to 2 July 2023 were in dispute. The direction I made at the telephone conference reflected that understanding. At the conciliation conference and arbitration hearing on 2 November 2023, the respondent disagreed and maintained that the commencement of the period was disputed. In the end, nothing really turns on this because both parties now agree that 26 September 2022 is not the correct start date.
Parties attended a conciliation conference and arbitration hearing on 2 November 2023.
Ms Jones was represented by Mr Jarryd Malouf of counsel, instructed by Mr Langler. The respondent was represented by Mr Daniel Stiles of counsel, instructed by Ms Gorry.
Ms Hadfield attended on behalf of the insurer.
Over nearly three hours, parties attempted to reach agreement. Mr Malouf pressed several times for the arbitration hearing to commence but the respondent indicated several times that it appeared agreement was possible, and I allowed time for those discussions. Even after
Mr Malouf started his submissions, Ms Hadfield indicated that she believed the matter could resolve and she asked for time to speak with the respondent’s representatives. I advised that the arbitration hearing would continue and that any offer could be conveyed through the solicitors who could advise counsel. Still no agreement could be reached. Counsel concluded their submissions shortly after 5pm.
I have set this history out in some detail because it bears on my determination.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents save for the Vocational Assessment Report dated 26 May 2023 which parties agree is not relevant to this determination.

Oral evidence

Neither party sought to adduce oral evidence of cross-examine any witness.

FINDINGS AND REASONS

The applicant’s submissions

Mr Malouf submits that there is a “topic of dispute” but no actual dispute between the parties. He refers to Personal Injury Commission Rule PIC 68 which requires the respondent to lodge a schedule of earnings, failing which the applicant’s schedule is admitted. Practice Direction 13 also directs the respondent to lodge a wages schedule.
Mr Malouf submits that Ms Jones’ claim begins and ends with the wages schedule attached to the ARD, the only qualification being that the period claimed should commence on
10 October 2022 and end on 23 June 2023.
Subject to that amendment, Mr Malouf submits that orders should be made for payment in accordance with the wages schedule lodged by Ms Jones. He provided proposed orders to that effect during the conciliation conference. Mr Malouf advised that he is instructed that amounts set out in the proposed orders total $11,645.14.

The respondent’s submissions

Mr Stiles submits that the respondent accepts the amended period referred to by Mr Malouf and that it accords with certificates of capacity submitted by Ms Jones.
Mr Stiles submits there is agreement as to most aspects of the claim. In particular, the PIAWE is agreed at $1,316.51. Having regard to indexation, the PIAWE from 1 October 2022 is $1,360, and $1,420 from 1 April 2023. Mr Stiles submits that the applicant’s wages schedule reflects these amounts.
Mr Stiles submits that Ms Jones was paid from 5 October 2022 on the basis of certificates of capacity, and the s 36 period commenced on that date and ran to 3 January 2023. On that basis, the s 37 period runs from 4 January 2023.
It is not clear to me how the respondent reconciles its acceptance of the amended period referred to by Mr Malouf, that is, from 10 October 2023, with the submission that the period runs from 5 October 2022.
In any event, Mr Stiles submits that the PIAWE of $1,360 from 4 January 2023 to
30 March 2023 gives a weekly payment of $1,088. From indexation on 1 April 2023 to
23 June 2023, the weekly payment is $1,136. Mr Stiles submits I should make orders to that effect with an order that the respondent have credit for payment made.
Mr Stiles submits that the only other issue is that Ms Jones worked for parts of the time during the s 37 period and her entitlement should be adjusted to reflect those earnings.
Mr Stiles submits there is no need for me to identify the precise amounts of weekly payments. Rather, I should make orders as to the relevant PIAWE as indexed, the relevant periods for the purposes of ss 36 and 37, and orders to the effect that the respondent is to have credit for payment made to Ms Jones, and the amounts payable are to be adjusted taking into account her earnings during various periods. Mr Stiles submitted proposed orders to that effect during the conciliation conference.
Mr Stiles submits that, once those orders have been made, the respondent would enter those amounts in its system to give the final amount to which Ms Jones is entitled; if the applicant maintains there is any error in the respondent’s calculation, parties could come back to the Commission.
Mr Stiles submits that the orders proposed by the applicant do not contain the necessary mechanism setting out how the amounts are arrived at.
I asked Mr Stiles whether the respondent has undertaken the exercise of entering the amounts in the respondent’s proposed orders in its system so as to obtain what the respondent maintains is the correct figure, and so as to consider how far apart the parties actually are. Mr Stiles said the respondent has not done so because the figures have not been agreed.

Submissions in reply

In reply, Mr Malouf submits that the orders proposed by the respondent are unsatisfactory and Ms Jones is entitled to certainty as to how the matter is resolved and the amount of compensation to which she is entitled.
Mr Malouf submits that the respondent has not disputed the applicant’s wages schedule and there is no justification for making a contrary finding. He submits that the “mechanism” of calculation is included in the applicant’s wages schedule which is not disputed.

Further discussion and submissions

In light of the respondent’s submissions that the PIAWE is not disputed, that the wages schedule is not disputed and the period is not disputed, I put to Mr Stiles that it remained unclear to me where the dispute really lies. As I understand Mr Stiles’ submission, it seems to be because, initially, the PIAWE was incorrectly calculated.

CONSIDERATION

There is no dispute that Ms Jones suffered injury to her right foot on 29 September 2022. There is no dispute as to her capacity for employment from that date. There is no dispute as to the PIAWE. Save for the dates referred to above, there is no dispute as to the wages schedule submitted for Ms Jones.
Rule 68 of the Personal Injury Commission Rules 2021 (the Rules) provides:
“Schedule of earnings
(1)     If the amount of weekly compensation or statutory benefits is in dispute, a party must include in an application in Commission proceedings a schedule of earnings containing full particulars of the amount claimed.
(2)    If a party wishes to dispute the accuracy of a matter in the schedule of earnings, the party must lodge and serve on the other parties a schedule of earnings containing full particulars of the party’s allegations of the earnings.
(3)     The schedule of earnings is to be lodged and served with the first document lodged and served by the party in the proceedings, in addition to the documents that must be lodged and served under rule 67.
(4)    A matter not disputed by a party under subrule (2) is taken to be admitted by the party.”
Procedural Direction PIC 5 – Schedule of Earnings (PIC 5), made by the President under
s 21 of the Personal Injury Commission Act 2020 (PIC Act), concerns requirements for preparation and lodgement of a schedule of earnings in proceedings in the workers compensation division. It is to be read subject to the PIC Act, the enabling legislation and the Personal Injury Commission Rules 2021.
Clause 3 of PIC 5 provides that the President or a Member before whom a matter is listed may at any time excuse a party from complying with any aspect of the Procedural Direction.
Clause 7 provides that, if the amount of weekly compensation/weekly payments is in dispute, a party must complete a schedule of earnings in the approved form. When lodging a reply to an application, if the lodging party does not agree with the amount stated in the schedule of earnings attached to the application, it should provide full details of the amounts it says are correct.
Clause 8 states that it is “inappropriate for any party to state ‘not known’ or ‘to be provided’ in relation to earnings or earning capacity.”
The ARD includes a Schedule of Applicant’s PIAWE for the period 22 May 2022, when
Ms Jones commenced employment with the respondent, to 21 September 2022.
The ARD also includes a Wages Schedule for the period 26 September 2022 to 2 July 2023.[4] It sets out the period of earnings, hours worked, indexed PIAWE, relevant PIAWE (95% or 80%), gross actual earnings, compensation paid to Ms Jones, and the total “underpayment”, calculated as $12,361.34.
[4] ARD page 34.
As noted above, Mr Malouf submits that the correct period commences on 10 October 2022 and the total amount of “underpayments” is $11,645.14.
The respondent does not dispute that the period commences on 10 October 2022, although Mr Stiles also submitted that it commences from 5 October 2022.
There is no dispute that the respondent has not lodged a schedule of earnings in response to that lodged by the applicant. The reasons are not clear. The respondent has not asked to be excused form complying with the requirement. The explanation that it was not lodged because the applicant’s earnings are not agreed only restates the dispute; it does not explain the failure to lodge a wages schedule. The respondent has not provided any calculation of the amounts it says are correct or where its calculations, if any, differ from those provided for Ms Jones.
Considering that the respondent says that there is no dispute as to the applicant’s PIAWE, and considering that the applicant’s wages schedule is agreed (subject to the amendment as to commencement date), it remains unclear where the dispute actually lies. It remains unclear how the respondent’s concessions are to be reconciled with the continuing dispute.
Mr Malouf submits that I should make the following orders:
“That the Respondent pay the Applicant arrears of weekly benefits pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (date of injury: 22 September 2022) as follows:
(a)   From 10 October 2022 to 25 December 2022 in the sum of $358.85 per week.
(b)   From 26 December 2022 to 1 January 2023 in the sum of $154.85 per week.
(c)   From 2 January 2023 to 12 February 2023 in the sum of $302.19 per week.
(d)   From 13 February 2023 to 19 February 2023 in the sum of $288.39 per week.
(e)   From 20 February 2023 to 12 March 2023 in the sum of $288.39 per week.
(f)    From 13 March 2023 to 19 March 2023 in the sum of $274.59 per week.
(g)   From 20 March 2023 to 26 March 2023 in the sum of $302.19 per week.
(h)   From 27 March 2023 to 2 April 2023 in the sum of $262.64 per week.
(i)    From 3 April 2023 to 9 April 2023 the sum of $389.90 per week.
(j)    From 10 April 2023 to 16 April 2023 in the sum of $369.20 per week.
(k)   From 17 April 2023 to 23 April 2023 in the sum of $230.68 per week.
(l)    From 24 April 2023 to 30 April 2023 in the sum of $353.10 per week.
(m)  From 1 May 2023 to 7 May 2023 in the sum of $215.50 per week.
(n)   From 8 May 2023 to 14 May 2023 in the sum of $291.20 per week.
(o)   From 15 May 2023 to 21 May 2023 in the sum of $339.30 per week.
(p)   From 22 May 2023 to 28 May 2023 in the sum of $308.22 per week.
(q)   From 29 May 2023 to 11 June 2023 in the sum of $328.00 per week.
(r)    From 12 June 2023 to 18 June 2023 in the sum of $344.92 per week.
(s)   From 19 June 2023 to 23 June 2023 in the sum of $328.00 per week.”

Mr Malouf submits that the sum of these amounts is $11,645.14.
Mr Stiles submits that I should make the following orders:
“1.     The Respondent to pay the Applicant weekly compensation as follows:
a.$1,292.00 per week from 5 October 2022 to 3 January 2023 (13 weeks) pursuant to s 36.
b.$1,088.00 per week from 4 January 2023 to 30 March 2023 pursuant to
s 37.
c.$1,136.00 per week from 1 April 2023 to 23 June 2023 pursuant to s 37.
2.     The Respondent is to have credit for payments of compensation already made during the period from 5 October 2022 to 23 June 2023.
3.     The Respondent is to deduct the Applicant’s actual earnings during the period from 5 October 2022 to 23 June 2023 from the amounts payable in order 1(a) to (c) above (as set out in the payslips provided by the Applicant for that period and attached to the ARD).”
Parties have spent several hours at the telephone conference and the conciliation conference and arbitration hearing trying to reach agreement. It is not clear how far apart they are because the respondent has not provided any estimate of its calculation of
Ms Jones’ entitlement.
In my view, it is not satisfactory to make the orders proposed by the respondent and give parties liberty to apply to bring the matter back if they cannot agree the calculations. Given that negotiations have proven fruitless to date, there is a real likelihood that the matter will be back before the Commission having advanced little, if at all.
The respondent does not dispute the wages schedule on which the orders proposed by
Mr Malouf are based. I consider that Ms Jones should have those orders made in her favour.

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Jones v AAA Nextt Group Pty Limited [2023] NSWPIC 603

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[2023] NSWPIC 603

9 November 2023