Kettley v Lindsay Brothers Management Pty Limited
[2021] NSWPIC 136
•25 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kettley v Lindsay Brothers Management Pty Limited [2021] NSWPIC 136 |
| APPLICANT: | Gregory Kettley |
| RESPONDENT: | Lindsay Brothers Management Pty Limited |
| MEMBER: | Mr Philip Young |
| DATE OF DECISION: | 25 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Calculation of PIAWE; award earlier made in favour of the applicant, but dispute existed regarding the correct amount of award because of different approaches to PIAWE by the parties; Held- former provisions 44c to 44g apply and respondent’s calculation the preferred approach; award for applicant accordingly. |
| DETERMINATIONS MADE: | 1. The Certificate of Determination issued 24 November 2020 is amended as follows: (a) Paragraphs 2 and 3 are deleted and replaced with the following: - “2. The applicant’s pre-injury average weekly earnings for the purposes of these awards are $1,565.76 per week for the first 52 weeks of weekly payments and $839.26 per week after the first 52 weeks of payments”. |
STATEMENT OF REASONS
BACKGROUND
On 24 November 2020 the Workers Compensation Commission (as it then was) issued a Certificate of Determination and Statement of Reasons in this matter.
The applicant was awarded weekly payments from 31 March 2018 pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (1987 Act).
Although this award was made in favour of the applicant, there had been no submissions concerning the applicant’s pre-injury average weekly earnings calculated in accordance with the former section 44C to 44G of the 1987 Act. As a result, I included in the Certificate of Determination a notation as follows:
“2. Liberty is granted to the parties to apply if necessary in respect of the quantum in 1.
3. Noted that the relevant pre-injury average weekly earnings are in sum of $1,380.45 per week”.
By email dated 23 March 2021 the applicant’s solicitors advised that a dispute had arisen between the parties concerning the quantum of the award of weekly payments. A teleconference was requested which was held before me on 22 April 2021. At the teleconference it appeared clear that the dispute related to the calculation of the correct pre-injury average weekly earnings. A direction was issued to the parties to file and serve written submissions limited to this issue.
ISSUE
The issue is limited to the question as to the applicant’s correct pre-injury average weekly earnings and hence the appropriate amounts under section 36 and 37 of the 1987 Act.
PROCEDURE AND DOCUMENTS BEFORE THE COMMISSION
The applicant was represented at the teleconference on 22 April 2021 by Mr K George, solicitor. The applicant was present. The respondent was represented by Mr R Slocombe, solicitor and Ms N Leneve attended from the insurer.
I was satisfied that the parties to the dispute were fully aware of the issue and despite my best endeavours at the teleconference the parties were unable to reach an agreement.
The parties subsequently filed and served written submissions as follows:
(a) By the respondent dated 4 May 2021;
(b) By the applicant dated 12 May 2021, and
(c) Submissions in reply by the respondent filed 20 May 2021.
SUBMISSIONS
As indicated above, the parties filed and served written submissions.
DISCUSSION
The party’s submissions appear to represent some common ground. Matters which I do not think are in contention are as follows:
(a) The amendments to calculation of PIAWE were not in place during the period the subject of the PIAWE calculation.
(b) The PIAWE is therefore to be calculated in accordance with the former sections 44C to 44G of the 1987 Act.
(c) The relevant earnings for the purposes of the calculation are for the period week ending 24 January 2016 to 15 January 2017. Weeks during which the applicant took unpaid leave and other leave should be excluded from the calculation in accordance with the former section 44C(1)(a) of the 1987 Act.
(d) After the first 52 weeks of weekly payments, payments in respect of overtime and shift allowance are not to be included, nor should other entitlements as described in (former) section 44G.
The respondent’s submission is that for the first 52 weeks of weekly payments the applicant’s PIAWE is in fact higher than that PIAWE of $1,380.45 noted in the above notations. The respondent says that the applicant’s correct PIAWE for the first 52 weeks is $1,565.76 and after the first 52 weeks the PIAWE drops to $839.26 because the PIAWE for the first period includes $726.50 per week overtime and shift allowances. The applicant’s PIAWE is in fact higher than that PIAWE of $1,380.45 noted in the above notations. The respondent says that the applicant’s correct PIAWE for the first 52 weeks is $1,565.76 and after the first 52 weeks the PIAWE drops to $839.26 because the PIAWE for the first period includes $726.50 per week overtime and shift allowances.
The applicant claims that for all relevant periods the PAIWE is $1,380.45 because:
(a) This was the figure claimed in the Application to Resolve a Dispute relevant to weekly payments from 31 March 2018 to date and continuing;
(b) There was no denial from the respondent in relation to the claimed PIAWE of $1,380.45;
(c) The respondent made no submission regarding the applicant’s entitlement to weekly payments or otherwise, and
(d) The respondent now seeks to reopen the issue, which should have been addressed at the hearing.
The applicant makes the point that the respondent provided submissions exceeding 20 pages dated 16 November 2020 but no submissions regarding the applicant’s entitlement to weekly payments. That is so, however, equally the applicant’s submission of 26 October 2020 went to 21 pages without any comment concerning the appropriate amount of weekly payments. It was for that reason, that this Commission on 24 November 2020 in its Reasons for Decision granted liberty to the parties to apply in respect to the appropriate amount of weekly payments. This Commission thought that both parties overlooked dealing with that aspect and no doubt this is because of a number of reasons, including the fact that the Modron format for taking of evidence had to be abandoned and the written submissions which followed dealt with highly complex medical issues in the case of a very badly injured applicant.
The applicant filed submissions in reply dated 18 November 2020 and these submissions also do not deal with the relevant amount of PIAWE. This leads me to the view that yet again both parties were mistaken in not addressing this issue in their submissions and in those circumstances, having taken that view, I believed it appropriate in the interests of justice that the parties be given the opportunity to make further submissions on this issue.
In my view there is a compelling reason why the Commission cannot adopt the PIAWE figure of $1,380.45 submitted by the applicant. Section 24 of the Personal Injury Commission Act 2020 (2020 Act) provides that the jurisdiction and functions of the Commission are those which “may be conferred or imposed on it by or under this Act, enabling legislation or any other legislation”. “Enabling legislation” is defined in section 5 to mean (for present purposes) “the workers compensation legislation”.
The expression “the workers compensation legislation” is defined by the 2020 Act to include that legislation within the meaning of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
The 1998 Act by section 4 defines “workers compensation legislation” to include both the 1998 Act and the 1987 Act. Accordingly, the reference in section 105(1) of the 1998 Act to the jurisdiction of the Commission gives the Commission (subject to some exceptions) exclusive jurisdiction to determine (etcetera) matters arising under both the 1998 Act and the 1987 Act.
In my view the jurisdiction of the Commission in terms of PIAWE calculations can only be exercised (in the absence of agreement) by complying with the definitions commanded by the former sections 44C– 44G and the formulas and requirements of sections 36 and 37 (inter alia) of the 1987 Act. The Commission has no jurisdiction to depart from these statutory commands in a way contrary to the formulas just mentioned.
In terms of the relevant calculations, I accept the respondent’s calculation of PIAWE during the first 52 weeks after 31 May 2018 as being $1,565.76, and I accept the respondent’s calculation of PIAWE after 52 weeks at $839.26. I say this because there are a number of weeks identified in schedule “A” to the applicant’s submissions which reveal what are described as “ordinary earnings” of the order of $1,520.83 per week. This is a figure clearly inclusive of overtime and shift allowance, components which are not recoverable after the first 52 weeks. The applicant’s pay slips at pp284 and following of the Application to Resolve a Dispute show the breakdown of ordinary earnings and overtime and allowances claimed by the respondent and it would in my view be unfair for the applicant to gain some windfall beyond his statutory entitlement.
There will be awards pursuant to section 36 and 37 from 31 March 2018 by reference to those figures for PIAWE (subject to indexation).
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