Laundy (Trading) Pty Ltd v Kopko - [2024] NSWPIC 711

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Laundy (Trading) Pty Ltd v Kopko [2024] NSWPIC 711
APPLICANT:	Laundy (Trading) Pty Ltd
RESPONDENT:	Jonalee Magtoto Kopko
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	19 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; following an accepted psychological injury the respondent was paid weekly benefits of compensation in accordance with medical certificates certifying total incapacity; consideration of the evidence; Held – finding that there was a change in employment that had affected the workers earnings within the meaning of section 58; the basis for this finding was the respondent had returned to work with another employer; no finding as to the quantification of any ‘refund’ or ‘ adjustment’ in respect of future payments as more financial material was required.
DETERMINATIONS MADE:	The Commission determines: 1. Section 58(1) of the Workers Compensation Act 1987 has been satisfied in the circumstances of this case. 2. The matter is listed for further telephone conference on 14 February 2025 at 10.30am. 3. Leave is granted to issue Directions for Production on Cambridge Tavern, Green Valley Hotel and the Proper Officer, Department of Home Affairs. 4. The applicant is to notify the respondent of this Decision. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ms Jonalee Magtoto (the respondent) was employed by Laundy (Trading) Pty Limited (the applicant) at the Twin Willows Hotel. Ms Magtoto was the venue manager and was hired in essence to manage the entire Twin Willows Hotel. She commenced employment with them in May 2022.
Ms Magtoto submitted a workers compensation claim in relation to a psychological injury in or around July 2022.
The claim for psychological injury was accepted by the relevant insurer, Hotel Employers Mutual Limited (HEM) in October 2022. Following the acceptance Ms Magtoto issued certificates of capacity from her general practitioner stating that she had no capacity for any form of work.
The applicant became concerned that Ms Magtoto was performing duties at the Cambridge Tavern in Fairfield which were in contravention of her certificates of capacity saying she had no capacity to work.
The circumstances of the psychological injury, or injury in general have not been put in dispute in this application.
The applicant now seeks that the respondent refunds the workers compensation insurer of the applicant, weekly payments that have been paid to the respondent on the basis that she had no capacity to work.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is s 58(1) of the Workers Compensation Act 1987 (the 1987 Act) engaged.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 711
Decision Date: 19 December 2024

CaseChat Overview and Summary

Laundy (Trading) Pty Ltd v Kopko involved a dispute concerning workers compensation benefits. The respondent had suffered an accepted psychological injury, and was subsequently paid weekly benefits in accordance with medical certificates attesting to total incapacity. The petitioner sought a review of the compensation payments, contending that there had been a change in employment affecting the respondent's earnings, warranting a cessation of benefits. The legal issues before the court included whether there had been a change in employment that impacted the respondent’s earnings and whether this change warranted a cessation of the compensation payments.

The court examined the evidence presented to determine if the respondent had returned to work with another employer, which would constitute a change in employment under section 58 of the Workers Compensation Act 1987. The court found that there had indeed been a change in employment that affected the respondent's earnings, as the respondent had commenced employment with another entity. However, the court did not make a finding regarding the quantification of any refund or adjustment of future payments, as additional financial information was required to determine the appropriate amount. This decision underscores the importance of employers and claimants maintaining accurate records and reporting any changes in employment status to ensure proper administration of compensation benefits.

Orders