Kerr v Sydney Catholic Schools Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kerr v Sydney Catholic Schools Limited [2024] NSWPIC 140
APPLICANT:	Alison Kerr
RESPONDENT:	Sydney Catholic Schools Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; issue in relation to calculation of pre-injury average weekly earnings; applicant argued that $100,000 paid to her pursuant to a deed entered into with the respondent represented earnings and could be taken into account in the calculation of the pre-injury earnings figure; consideration of the application of schedule 3, clauses 2 in relation to the meaning of pre-injury average weekly earnings and of clause 6 as to the meaning of “income” and “earnings”; Held – that the payment under the deed could not be construed as earnings; issue as to the ability of the applicant to work in suitable employment and the calculation of her entitlement to weekly compensation under sections 36, 37 and 32A and definitions in schedule 3, clause 9; the applicant had no entitlement to weekly compensation as her ability to earn in suitable employment exceeded her actual earnings on a weekly basis and was more that 95% of her pre-injury average weekly earnings figure.
DETERMINATIONS MADE:	By consent of the parties, the Commission orders: 1. The Application to Resolve a Dispute is amended by consent to add a claim for treatment expenses under s 60 of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or Medicare Notice of Charge. The Commission determines: 3. The applicant has been assessed by the Medical Appeal Panel as suffering 14% whole person impairment. 4. The applicant is not entitled to lump sum compensation due to the operation of s 65A (3) of the Workers Compensation Act 1987 because the permanent impairment assessed is below the threshold of 15%. 5. Award for the respondent in relation to the claim for weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Ms Alison Kerr was employed by the respondent, Sydney Catholic Schools Limited, as a secondary school science teacher commencing in 2001 as a casual. She has a background history of an anxiety disorder and social phobia. She obtained a full-time position with the respondent as a chemistry teacher at Our Lady of Sacred Heart Kensington commencing in 2011. She brought proceedings in the Workers Compensation Commission in matter 6237/18 in relation to a psychological injury she alleged she sustained in the course of that employment. Those proceedings were resolved on 23 January 2019 with a Certificate of Determination-Consent Orders providing for the payment “on a voluntary basis” of weekly compensation from 15 February 2018 to 11 July 2018 and payment of medical expenses together with awards for the respondent for other periods of weekly compensation and medical expenses not included in the voluntary payments.
In the present proceedings, she alleged she suffered a psychological injury as a result of the respondent failing to provide her with suitable duties in the period 5 February 2019 to
5 October 2021 and also because they terminated her employment in January 2020 as a result of an administrative error.
In a Certificate of Determination dated 3 March 2023 I determined the liability dispute in relation to the above-mentioned claim, finding for the applicant under s 4(b) of the Workers Compensation Act 1987 (1987 Act), also finding that the respondent had not established a defence under s 11A of the 1987 Act and making orders for the s 66 lump sum claim to be referred for assessment by a Medical Assessor.
On 3 August 2023 Medical Assessor Clayton Smith issued his Medical Assessment Certificate finding 7% whole person impairment (WPI) for her psychological injury. Ms Kerr lodged an appeal against this assessment which was determined by the Medical Appeal Panel on 27 November 2023. They revoked Medical Assessor Smith’s Certificate and substituted their Certificate, finding permanent impairment of 14% WPI.
Ms Kerr is not entitled to lump sum compensation because the assessment of her permanent impairment is under the threshold in s 65A (3) of the 1987 Act.
The matter has now returned to me to deal with the outstanding claim for weekly compensation. Mr Collins sought to amend the Application to Resolve a Dispute (ARD) to include a claim for s 60 expenses and to make a “general order” in relation to that claim.
Mr Murray agrees to the amendment and to a general order being made.

PROCEDURE BEFORE THE PERSONAL INJURY 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.
This matter proceeded to arbitration hearing on 8 February 2024 on the MS Teams platform. Mr Ian Collins, solicitor, appeared for Ms Kerr and Mr Thomas Murray, solicitor, instructed by Ms Emily Gorry from the insurer.

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;
(b)    Reply and attached documents;
(c)    Certificate of Determination dated 3 March 2023;
(d)    Medical Assessment Certificate issued by the Medical Assessor on
3 August 2023;
(e)    Medical Appeal Panel certificate and reasons dated 27 November 2023;
(f)    Application to admit late documents filed by the applicant dated
11 December 2023, and
(g)    Application to admit late documents filed by the respondent dated
22 January 2024.

Oral evidence

There was no oral evidence. Both solicitors made oral submissions which were sound recorded. A copy of the recording is available to the parties.

FINDINGS AND REASONS

The parties are in dispute as to the calculation of the pre-injury average weekly earnings figure (PIAWE). Mr Collins in his submissions contends that the amount paid to Ms Kerr pursuant to a deed in the sum of $100,000 should be included in the calculation and
Mr Murray for the respondent contends that it cannot be included.
The other area of dispute relates to Ms Kerr’s ability to work in suitable employment.

Relevant legislative provisions

Schedule 3, cl 2 of the 1987 Act deals with the meaning of PIAWE as follows:
“(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, or
(b) to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4)     If the amount of a worker's pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker's pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
In Schedule 3, cl 6 of the 1987 Act the meaning of “earnings” and “income” is set out:
“(1)    The ‘earnings’ received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
(2)     The ‘income’ of a worker does not include--
(a)any minimum amount paid to a superannuation fund or scheme in respect of the week to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, for the worker, or
(b)the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or
(c)any payment in respect of loss of earnings under a scheme to which the workers compensation legislation relates or under any other insurance or compensation scheme, or
(d) any payment made without obligation by the employer.
(3)     However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.
(4)     The Workers Compensation Guidelines may make provision for or with respect to the matters to be taken into account for the purposes of determining whether a benefit has been provided to a worker or whether the worker is entitled to the use of a benefit.”
Sections 36 and 37 of the 1987 Act provide how any entitlement to weekly compensation is calculated in the first 13 weeks and from 14 to 130 weeks. The calculation depends on whether a worker has “no current work capacity” or “current work capacity”. These terms are defined in Schedule 3, cl 9 of the 1987 Act as follows:
“(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.”
In s 32A of the 1987 Act suitable employment is defined:
“‘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.”

The deed

The $100,000 payment in issue was paid to the applicant pursuant to a deed between the parties dated 5 October 2021.[1] The recitals in the deed state:
“A.The Employee commenced employment with the Employer from 2011 as a Secondary Science teacher at one of the colleges operated by the Employer (Employment).
B. On 28 April 2020 the Employee lodged a General Protections application with the Federal Circuit Court of Australia, proceedings numbered SYG1015/2020, against the Employer, seeking a remedy under Part 3-1 of the Fair Work Act 2009 (Cth) (Proceedings).
C. On 3 July 2020, the Employer filed a Defence to the Proceedings and on 9 April 2021 the Employer filed an Amended Defence in the Proceedings (Dispute).
D. Without admission of liability, the Parties have agreed to settle all matters in relation to the Employment, the Proceedings and the Dispute on the terms set out in this Deed.”
[1] AALD-A p 15. (Note the pages of the deed are out of order and p16 of the AALD-A should come after page 17.)
Clause 1.3 of the deed provides:
“Settlement Sum means $100,000.00 gross (less applicable tax) to be characterised as an Employment Termination Payment for tax purposes.”
Clause 8 provides:
“The Parties agree that the Settlement Sum is not compensation for any claim for a work-related illness or injury.”
Both parties filed written submissions which are attached to their respective applications to admit late documents. As the written submissions are comparatively brief for ease of reference I have reproduced them below.

Applicant’s written submissions

The applicant’s written submissions state:
“The PIAWE is the average gross pre injury earnings from any employment at the time of injury. ( Schedule 3 - Clause 2 (1) WC Act 1987).
In the 12 months to the deemed date of injury 5/10/21 the Applicant settled her employment dispute with the Respondent on 5/12/21 which included inter alia a payment 9 [sic, ( ] Taxable ) for lost income due to the Applicants claim that the Employer failed to provide suitable duties and / or pay her in the sum of $100,000.
This was a gross payment taxable and was earnings and therefore falls within the calculations for the PIAWE.
The Applicant was entitled to $100,000. In the 12 months 5/12/20 - 5/10/21 she also earnt $47,834.67.
Therefor over the relevant period (12 months ) her gross income was $147,834.67 ie@$2,842.97 pw
Her PIAWE therefore is $2,842.97.
The Applicant has reduced capacity and can only work casual to a maximum of 3 days per week. This means she loses 2 days per week plus holidays ( and accrues no Industrial Rights eg Sick Leave).
Since 5/10/21 to 6/12/23 the Applicant has earnt $121,995.75 ie 2 years 9 weeks ie 113 weeks $1079.61 pw.
She is entitled under Sections 36 and 37 to make up pay to 95°/o of
her PIAWE.
Her loss per week is $1,763.36 as at 6/10/21 95% of PIAWE is $2,700.82.”

Respondent’s written submissions

The respondent’s written submissions are as follows:
“2.     The respondent disputes the PIAWE claimed by the applicant, both in her ARD, and the amount asserted in the applicant’s written submissions.
3.     In her written submissions, the applicant concedes that her actual earnings over the relevant period up to the deemed date of injury of 5 October 2021, were $47,834.67 (in total). That figure has been calculated by the applicant as relating to the period from 5 December 2020 to 5 October 2021. That period totals 43.4 weeks.
4.     Accordingly, in respect of those earnings, the correct PIAWE is $1,102.18 per week.
5.      The respondent does not concede that figure. The attached wage schedule calculates the applicant’s PIAWE, based on her actual earnings over the relevant period prior to 5 October 2021, as a slightly lesser figure of $1,088.23.
6.     The only real point of contention concerning the PIAWE calculation, concerns the applicant’s assertion that amounts received under a Deed of Release executed with the respondent, in a different forum, can be determined to constitute ‘earnings’ and therefore be included in the PIAWE calculation.
7.     The only basis on which that assertion is made, is that the amount was ‘taxable.’
8.     The respondent submits that an amount simply being taxable, does not of itself bring that amount under the definition of earnings pursuant to sch 3 WCA 1987.
9.     The worker asserts that in the 12 months prior to the deemed date of injury, the worker ‘settled her employment dispute’ with the respondent. It is to be noted that this resolution was effected by way of a Deed, and pertained to proceedings commenced by the worker in the Federal Circuit Court of Australia. The Deed itself notes that the proceedings pertain to a ‘General Protections Dispute.’
10.    The applicant asserts that the gross payment under the Deed of $100,000, which was ‘taxable,’ constituted earnings for the subject of a PIAWE calculation.
11.    With respect, the above submission cannot be accepted.
12.    In deciding the issue in question, the Member can be guided only by the terms of the Deed itself.
13.    The respondent submits that there is no ambiguity regarding the terms of the Deed. The Deed provided for the applicant to resign her employment with the respondent, as a term of the agreement (clause 2). Critically, clause 1.3 provides as follows:
‘Settlement sum means $100,000 gross (less applicable tax) to be characterized as an Employment Termination Payment for tax purposes.’
14.    There can be no doubt therefore that the above sum was an employment termination payment. An employment termination payment is not ‘earnings’ in the relevant sense, and the applicant has provided no submissions or authorities supporting her assertion.
15.    Schedule 3 of the WCA 1987 provides the following definition:
‘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.
16.    Clause 6 defines ‘earnings’ as follows:
‘earnings’ received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
17.    It is, with respect, untenable to suggest that the settlement sum paid under the Deed constitutes earnings for the purpose of schedule 3, for several reasons:
- The amount paid was a termination payment. It was paid in respect of cessation of the applicant’s employment with the respondent, and nothing in the Deed suggests, implies or supports any assertion that it related to income or earnings. Further, that amount was paid to settle an industrial dispute, entirely unrelated to the matters arising under the WCA 1987.
-A payment made under Deed to resolve an alleged legal liability, does not constitute income.
-There is no evidence to support that the payment was for loss of earnings over the 52 weeks prior to 5 October 2021. It could have been a) to secure the worker’s resignation, b) for past or future expenses or costs, c) for future loss of income. These are all possibilities that have not been discounted. The worker asks the Commission to infer that the settlement sum was solely for past loss of earnings. There is nothing in the deed that supports such a conclusion.
-Even if the PIC could conclude that the settlement sum paid under the Deed was ‘earnings’ as defined (which the respondent disputes entirely), it could not possibly be a payment “in respect of a week” for “work in any employment…” The definition in Sch 3 is simply not met – the payment cannot be interpreted as payment received by a worker for work in employment, because the Deed does not allow that inference to
be drawn. It was clearly a payment made to resolve alleged liability arising under industrial law, and to settle an industrial dispute.
-Further, the applicant was not working with the respondent over the relevant period (that is, not performing any duties). She was employed and working with different employers (namely the Department of Education) over the relevant period prior to the date of injury. This is a further reason why the payment under the Deed could not possibly constitute earnings for work performed by the worker.
18.    For the above reasons, the respondent disputes that the amount paid under the Deed executed between the respondent and the applicant can be categorized as an amount capable of being included in the PIAWE calculation.
19.    The respondent further relies upon clause 6(d) of sch 3, which confirms that income does not include a payment ‘made without obligation by the employer.’ Whilst the Deed, once executed, obligated the employer to pay that amount to the worker, it may be inferred that the decision taken by the respondent to agree to that settlement sum was pursuant to no obligation at all. It was a voluntary decision to enter into the agreement to resolve unrelated legal proceedings, and therefore clause 6(d) applies.
20.    Moreover, the applicant’s proposed method of apportioning that payment is fatally flawed. The worker simply seeks to divide the settlement sum over the number of weeks in the relevant period prior to the injury. There is no legal or logical basis for that approach. The Deed itself does not confirm that the settlement sum is for lost earnings at all, much less that it is for lost earnings over the relevant period prior to 5 October 2021. There is no basis to neatly divide a one off amount over the relevant period prior to injury.
21.    The situation may be contrasted with, for example, a bonus payment paid at the end of a financial year. In such a case, it may be clear over what period of work that bonus relates.
22.    This is not such a case, as the payment was a one off, termination payment, not meeting the definition of earnings and certainly not a payment made in respect of any work performed by the worker. Further, the payment was clearly not paid in respect of any specific period, and therefore the approach asserted by the applicant cannot be adopted.
23.    Finally, the Deed plainly provides that the settlement is made without admissions of liability. It was clearly a negotiated settlement to resolve unrelated industrial disputes, and could not therefore be used as a basis to argue or conclude that the liability of the employer should be determined by reference to that negotiated/compromised settlement amount.
Accordingly, the respondent submits:
·The applicant’s PIAWE, based on her actual earnings over the relevant period prior to injury on 5 October 2021 (as calculated pursuant to sch 3) is $1,088.23 per week.
·The respondent disputes that the ‘settlement sum’ paid under the Deed executed between the applicant and respondent can be included in the PIAWE calculation.
There are further disputes regarding the applicant’s ability to earn in suitable employment, and disputes as to the extent if any of her entitlement to weekly payments. Submissions on those issues will be advanced at the hearing.”

Applicant’s oral submissions

Mr Collins submitted that in relation to the PIAWE dispute the real issue is in relation to the $100,000 that the applicant was entitled to as a result of the settlement of the industrial issue with the employer. He submitted that the applicant’s position is simple that the $100,000 was earnings and it falls within the definition of PIAWE. He noted that the respondent called the payment a “termination payment” and therefore should be excluded.
Mr Collins submitted that the Act says the amounts that cannot be included are set out on
cl 6 of Schedule 3, which are superannuation payments, non-monetary benefits, payments in respect to loss of earnings under the workers compensation legislation or under any other insurance or compensation scheme and any payment made without obligation by the employer. He argues none of those exclusions operate to exclude the $100,000 payment.
He referred to the terms of the deed. Mr Collins submits that the deed in its recitals says the applicant brought a general protections claim. He says this means she complained that she wasn’t being paid or given shifts. He says that claim was for unpaid wages and that was the claim that was settled and it represented income. He submits that, therefore, it represented earnings and so it was taxable. Mr Collins says there is no argument that the $100,000 represented wages loss, so it falls within the definition of earnings in relation to PIAWE.
In relation to the second issue, it was submitted that the applicant is fit for casual part-time work and this is reflected in the Medical Appeal Panel decision. Mr Collins argued that casual work gets paid at an inflated rate to take into account you do not get paid for sick leave or holiday pay. He submits that on a superficial view it looks like she is earning more, but he argues you have to take into account that a school teacher does not work every week and a casual does not get paid for the holidays. He submits the appropriate way to look at her income is to look at her gross income over the period. He submits if the respondent were to submit she would be capable of doing more work, that does not accord with the medical evidence from Dr Teoh. He says even Dr Roberts finds that she is not fit for a teaching role. Mr Collins referred to the Medical Appeal Panel decision which gave her a category 3 for employability. And it was found she cannot work in the same position, but she can work in less than a full-time load being less than three days per week in a casual role that is qualitative less than a full time class room teacher.
In relation to Schedule 3, cl 6(1) the meaning of earnings and the respondent’s submission, Mr Collins submits the applicant was employed by the respondent and the income she received was for the non-payment of wages for work that she should have been supplied. He argues it still falls within the definition of earnings and that was the basis it was paid.

Respondent’s oral submissions

It is submitted that the termination payment cannot be construed as income or earnings within the definition in Schedule 3. Mr Murray argues there is nothing in the deed stating this. He also submits, simply because an amount is taxable, does not render it earnings. He submits that this is not included in the provisions in Schedule 3 of the 1987 Act.
It is submitted that the list of matters to be excluded from the calculation of PIAWE is not exhaustive. It was submitted that the argument, if the payment is not in the exclusions, it therefore falls within the definition of PIAWE is wrong because it does not take into account the definitions of earnings and income in cl 6.
It was further argued that the deed itself is a negotiated settlement and included matters such as the resignation of employment, so it does not follow the whole of the payment of $100,000 was for wages not paid. He submits the payment was to secure the releases in the deed. He argues that the deed itself stated the payment was a termination payment, it did not say it was for loss of wages. It was submitted that one cannot go behind the deed. It was submitted the applicant signed the deed and she cannot deviate from the terms of the deed.
Mr Murray submitted that Schedule 3 defines PIAWE and refers to earnings received by the worker for work in any employment in which the worker was engaged. It was submitted that the critical word is “engaged” and this does not equate to “employed”, so the fact that the applicant was on the respondent’s books is not relevant. He says “engaged in” means undertaking employment duties.
He also argues that the definition of earnings says it is in respect to a week whereas the applicant’s submission bundles together the payment from any source and divides it by the number of weeks. Mr Murray also submits the payment has to be for work performed and the applicant did not perform work in employment in the relevant period, except for the Department of Education.
Mr Murray cited the decision of Principal Member Harris in Kirkbride v State of New South Wales (Ambulance Service)[2] which he says provides guidance in respect to earnings and it was held earnings requires a payment in exchange for labour. I do not find this case to be of assistance as it involved an exempt worker and, therefore, not the same legislative provisions as involved in the present matter.
[2] [2019] NSWWCC 236 Kirkbride.
It was submitted that there is no evidence that the amount of $100,000 equalled the weekly earnings. He submitted that we do not know how the figure was calculated. He argues it is a compromised figure and incorporates potential liabilities.
Mr Murray submitted that the applicant was employed by another employer in the relevant period and that is why the respondent has conceded the PIAWE figure of $1,088.23.
It was also submitted that cl 6(d) of Schedule 3 is relevant as the payment in the deed was not made due to an obligation on the employer, because the decision to settle the claim was made without any obligation on part of the employer. So cl 6(d) excludes the payment.
It was also submitted that it does not follow the $100,000 can be divided over the exact relevant period to calculate the PIAWE, it was submitted that it is different to a bonus.
The respondent’s submission is the PIAWE is $1,088.23.
In the schedule to the respondent’s submissions they include a calculation of the applicant’s actual earnings. But it is argued one needs to look at the applicant’s capacity to earn. It is not simply a matter of deducting the actual earnings from the PIAWE. The respondent accepts the Medical Appeal Panel and Dr Teoh said she could only work three days per week. However, the records of her actual earnings the week ending 20 September 2022 shows she worked five days per week and other weeks she worked four days per week. Mr Murray submitted that the Medical Assessor does not apply the terms of s 32A or s 37 and that it is necessary for me to do so.
He argues that in the schedule there are periods where her earnings were nil but that does not mean she had no capacity as it could be a reflection of no availability of work, but this cannot be taken into account under s 32A.
Mr Murray submits Even if one takes her hourly rate for three days per week as the limit of her capacity, this is $75.13 per hour and equals $1,800 per week which it is submitted vastly exceeds her PIAWE and results in a nil entitlement to weekly compensation.

Applicant’s submissions in reply

Mr Collins says the base rate of $75.13 per hour is not reflective of a true hourly rate as she can only work when employment is available, for example she cannot work in holidays as not teaching work is available then. So he argues the way to look at this it to take her total earnings over the period.
He submitted the respondent’s argument that the deed was a termination payment is not correct as it was a payment between the applicant and the respondent in relation to employment issues and for past wages and it included a resignation. That does not preclude it being categorised as income. He says the deed is an obligation to pay and it is an agreed figure. He submits if he were to employ a chef but went out to dinner every night, he still has an obligation to pay the chef. So, Mr Collins submits the applicant was still a worker and there is an obligation to pay her even if she did no actual work for the respondent in the relevant period in which the PIAWE is calculated.
I raised with Mr Collins s 32A and the prohibition from taking into account the availability of employment. He said one needs to look at the whole picture and the duties with the Department of Education involve work only being available when schools are open.
The respondent in response relies on s 32A and states the availability of work cannot be taken into account and, secondly, that the applicant is not restricted to only working in schools, there would be a range of other work she could do in the school holidays.

Determination

Sections 36 and 37 of the 1987 Act refer to the rates of compensation to which a worker may be entitled as percentages of the PIAWE. As set out above, Schedule 3 of the 1987 Act defines the meaning of PIAWE. Clause 2(2) provides that the relevant earning period is the 52 weeks immediately before the date of injury, although this period can be adjusted to take into account any unpaid leave and other matters set out in cl 2(3) and also in the regulations.
In the applicant’s case her date of injury is 5 October 2021. So the relevant period to take into account in calculating the PIAWE figure is the 52 weeks before that date.
In the respondent’s “Wages Schedule - Calculation of PIAWE”[3] the applicant’s earnings from her work with the Department of Education in the relevant period are set out, with six weeks deducted where she had no earnings. This was an adjustment of the “relevant earning period” as set out in clause 2. The respondent’s calculation of the PIAWE is $1,088.23.
[3] AALD-1 p 4.
The applicant’s schedule headed “Calculation of Income Payments Part 1” says it is from
5 November 2020 and uses days not weekly amounts coming to a total of $47,834.67 of earnings from the employment with the Department of Education. The respondent says their figure for PIAWE is correct, but, in any event, the applicant’s figure would come to a figure of $1,102.18 per week, only slightly different, without the $100,000.
I find the respondent’s calculation has been performed correctly in accordance with cl 2 of Schedule 3 and the PIAWE is $1,088.23.
In relation to the applicant’s argument that the $100,000 payable under the deed should be included as earnings in the PIAWE calculation, I am not persuaded by Mr Collin’s arguments. I agree with the respondent that the deed in cl 1.3 says the payment is to be characterised as “Employment Termination Payment for tax purposes” and I cannot go beyond the terms of the deed. To infer that the payment was for wages lost in the “relevant period” I consider would only be speculation.
In Shao Wen Zheng v Guo Yong Yang & Ors[4] Roche DP stated at [81]:
“Where direct proof is not available it is possible to draw an inference from known facts. However, those facts must do more than ‘give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture’ (per Dixon J (as he then was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd (unreported, High Court, 27 April 1951), cited by Williams, Webb and Taylor JJ in Holloway v McFeeters [1956] HCA 25: 94 CLR 470 at 480-481). The law ‘does not authorise a court to choose between guesses’ (per Dixon CJ in Jones v Dunkel[1959] HCA 8; 101 CLR 298 at 305).”
[4] [2008] NSWWCCPD 144, Zheng.
As Mr Murray submitted, the payment of $100,000 was in settlement of all claims the applicant has, had or may have against the respondent employer as set out in cl 11 of the deed. This means it was not necessarily confined to the past loss of wages due to not being given shifts and the applicant’s consideration set out in the deed at cl 4 was to resign, as well as to release and discharge the employer for any claims. Therefore, I agree with the respondent’s submission that it is impossible to work out if the $100,000, in whole or part, reflects lost wages.
Furthermore, I reject Mr Collins submission that just because the definition of “income” excludes certain payments and the deed does not fall within one of these exclusions, then it means the payment of $100,000 must be income. As a matter of statutory construction I find this offends the plain reading of the text. As I have stated the text of cl 6(2) of Schedule 3 of the 1987 Act just lists items which are not included as “income” of the worker.
In addition, the definition of “earnings” in cl 6(1) of Schedule 3 of the 1987 Act is relevant. It means the amount that is the income of the worker received by the worker for work performed in any employment during the week. As the respondent submits the applicant did not perform work for the respondent during the weeks which are taken into account in the relevant period for the PIAWE, however, she did receive earnings in the relevant period for work she performed for the Department of Education and that is why those earnings are included in the PIAWE calculation. I reject Mr Collins argument that because the applicant was still “on the books” of the respondent that means the $100,000 needs to be taken into account. She may have been “employed” but she did not perform work for the respondent in that period.
Therefore, I reject the submission that the $100,000 payment should be taken into account in the calculation of PIAWE.
Turning to the second issue, the applicant’s entitlement to weekly compensation from
5 October 2021 is governed by ss 36, 37 and s 32A of the 1987 Act. There is consensus that the applicant does not have capacity to return to pre-injury employment but she is able to return to work in suitable employment. Mr Collins relies on the assessment by the Medical Appeal Panel which in its certificate stated for employability:
“She cannot work in the same position. She can tolerate less than a full time load (up to three days per week) in a casual role that is qualitatively less demanding than a full-time classroom teacher.”
The applicant has demonstrated this capacity by her work with the Department of Education. The formula in s 36(2) says the entitlement is 95% of the PIAWE less her “current weekly earnings”. 95% of the PIAWE figure I have found of $1,088.23 is $1,033.82. In the s 37 period the rate is also 95% for weeks when the applicant has worked not less than 15 hours per week but it drops to 80% of PIAWE if she works for less than 15 hours per week.
“Current weekly earnings” is also defined in Schedule 3, cl 8 of the 1987 Act as meaning the greater of either her actual gross earnings in respect of a week or her ability to earn in suitable employment.
The respondent has set out the applicant’s actual earnings and it is evident that in the majority of weeks she has earned more than 95% of the PIAWE figure. The respondent also argues that the applicant’s ability to earn in suitable employment is not restricted to her actual earnings. Mr Murray argued the fact that she was able to work for so many weeks exceeding her PIAWE demonstrates her ability to earn. He argues that the weeks where the earnings are less are more likely than not due to the availability of work which is a factor not permitted to be taken into account under s 32A.
Mr Collins argued that one just cannot use her raw actual earnings because they do not reflect that she cannot work in school holidays and does not have the industrial options open to a full-time worker. I reject this argument. Clearly the definition of current weekly earnings means her actual gross earnings and does not allow me to entertain matters such as raised by Mr Collins. Also, the fact that schools are closed for holidays, meaning work will not be available to her every week, I find is a factor I cannot take into account under s 32A.
I accept the submission of Mr Murray that the applicant is not restricted to working in schools. Dr Teoh’s reports are somewhat dated. Dr James also reported in 2022 that the applicant is working as a casual teacher in a selective school providing a supervisory role and this is a significant deterioration from a year 12 chemistry teacher and senior HSC marker.[5] There is no consideration given to other work such as a tutor which could be performed when schools are on holidays. The Medical Appeal Panel found she could work up to three days per week in a casual role that is qualitatively less demanding than a full-time class room teacher. As Mr Murray submitted there are other roles apart from in schools when they are on holiday that could meet this description.
[5] ARD p 331.
Furthermore, I accept the submission of Mr Murray that applying the factors in s 32A I should not restrict the applicant’s ability to perform suitable work to just her actual earnings, when there is a weekly fluctuation that is more likely than not due to availability of work and not to do with her ability. I accept the logic of this submission. Mr Collins did not make any persuasive submissions to the contrary. The most recent statement from the applicant is dated 30 August 2022, she has not accounted in this or her earlier statements as to why there is a fluctuation in her actual earnings. The applicant has the onus of proof. When one takes into account the factors in s 32A such as her age, education, work history and the medical information I find that she does have a capacity to work three days per week as a casual teacher. I find I cannot take into account availability of that work, such as holiday periods. In any event, I accept the respondent’s submissions that she would be able to undertake other casual work when schools are on holiday and work such as a tutor would utilise her skills but fit within the Medical Appeal Panel’s description of being qualitatively less demanding that a full-time classroom teacher.
Finally, Mr Collins when he submits the applicant cannot access the industrial benefits of a full-time teacher, glosses over the fact that a casual worker receives a higher hourly rate to take into account such matters as there being no sick pay or holiday pay, which he did acknowledge earlier in his submissions.
In summary, I find that the applicant’s ability to earn in suitable employment is higher than her actual weekly earnings and higher than 95% of her PIAWE and that therefore she has not established an entitlement to weekly compensation in the period claimed. Therefore, I find an award for the respondent for the claim for weekly compensation.

[2024] NSWPIC 140

21 March 2024