Lawson v Benedict Industries Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lawson v Benedict Industries Pty Ltd [2021] NSWPIC 153
APPLICANT:	Carl Lawson
RESPONDENT:	Benedict Industries Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	31 May 2021
CATCHWORDS:	WORKERS COMPENSATION- application for expedited assessment claims weekly benefits where a work capacity decision is in dispute; Held- applicant has no current work capacity, and has had no current work capacity since 16 January 2021; applicant has not disputed the insurers assessment of PIAWE; no dispute that the second entitlement period applies to the applicant’s entitlement to weekly payments from 16 January 2021; calculation of weekly payments of compensation therefore pursuant to section 37(1) of the 1987 Act.
DIRECTIONS MADE:	1. Respondent to pay the applicant weekly payments pursuant to section 37(1) of the Workers Compensation Act 1987 (the 1987 Act) from 16 January 2021 to date and continuing at the rate of $1504 per week, as may be adjusted from time to time in accordance with section 80 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant relies upon an Application for Expedited Assessment and attached documents (the AEA) and the respondent relies upon a Reply and attached documents (the Reply).
The AEA claims weekly benefits where a work capacity decision is in dispute. The period of weekly compensation in dispute was said to be from 10 October 2020 and continuing.

PROCEDURE BEFORE THE COMMISSION

Following a telephone conference on 7 April 2021 and directions dated 7 April 2021, the applicant lodged submissions by way of an Application to Admit Late Documents dated 22 April 2021. The respondent was directed to lodge submissions by 28 April 2021, but it has not done so. However, the respondent’s submissions at the telephone conference and section 78 notice dated 7 October 2020 (AEA 8, Reply 1) and the insurer’s review decision dated 15 December 2020 (AEA 113, Reply 10) make the respondent’s position clear. The directions dated 7 April 2021 provided that the matter would be decided “on the papers”.
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) The Application for Expedited Assessment and attached documents;
(b) Reply and attached documents.

Oral Evidence

There was no application for leave to give oral evidence or to cross examine the applicant.

DOCUMENTS AND MEDICAL EVIDENCE

The Work Capacity Decision and Review Notices

The workers compensation insurer, EML, issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 7 October 2020 (the section 78 notice, AEA 8). The section 78 notice informed the applicant that the insurer had made a work capacity decision pursuant to section 43 (1) (a) of the Workers Compensation Act 1987 (the 1987 Act). The section 78 notice relied upon the certificate of capacity issued by the treating doctor, Dr Rahman, dated 29 September 2020 and earlier certificates, in which the applicant was certified fit for suitable duties for 8 hours a day, 3 days a week with restrictions as to lifting and carrying up to 15 kg, pushing and pulling up to 15 kg and driving ability as tolerated. The section 78 notice also informed the applicant that “vocational option” of a Laboratory Technician (Chemistry) was suitable employment for the applicant.
In a review decision dated 15 December 2020 (the review decision, AEA 113), EML notified the applicant of the outcome of its review of the section 78 notice. EML considered subsequent information, including the termination of the applicant’s employment with the respondent on 9 October 2020 and the above-mentioned reports of Dr Bodel and
Dr Bentivoglio. EML advised that “based on the information provided by SIS Rehab and noting this role has been deemed as medically appropriate by Dr Rahman, we are satisfied that the role of a laboratory technician represents suitable employment…” EML concluded that “based on the information outlined above, we are of the view you have the capacity and ability to earn $1800 per week in suitable employment as a Laboratory Technician working 24 hours per week”.

Statement

The applicant’s statement dated 25 January 2019 was attached to the AEA (AEA 1). There was no subsequent statement of the applicant attached to the AEA. The statement of the applicant dated 25 January 2019 went mainly to questions of liability and injury, which are not in dispute. Subsequent events, such as surgery on the applicant, return to work on suitable duties and the nature of those duties, termination of employment by the employer and subsequent restrictions on capacity for work were not addressed by way of statement of the applicant.
However, these issues were considered or recorded in the reports of Dr Bodel dated 3 August 2020 (AEA 40) and Dr Bentivoglio dated 28 September 2020 (AEA 51), the termination of employment letter of the respondent dated 10 September 2020 (AEA 111), the SIS reports dated 9 July 2020, 12 May 2020 and 17 September 2020 (Reply 23, 26 and 48 respectively) and the CAS report dated 22 February 2021 (AEA 57). In my view, there is sufficient information contained within the aforementioned reports and documents to enable a direction to be issued in this matter.

Reports of Dr Bodel and Dr Bentivoglio

Dr Bodel diagnosed acute disc rupture at C6/7 and the aggravation, acceleration, exacerbation and deterioration of a disease process at C5/6 and C6/7 caused by the injury at work on 4 January 2019. Dr Bodel recorded that surgery was done on 21 March 2019, being a two level surgical procedure with the anterior cervical decompression and disc replacement at C5/6 and an anterior cervical decompression and fusion at C6/7. Dr Bentivoglio recorded that the applicant underwent surgery on 20 May 2019 in the form of C5/6 disc arthroplasty and C6/7 anterior cervical discectomy and fusion.
The report of Dr Bodel dated 3 August 2020 (AEA 40) noted that at that time the applicant was back doing clerical based work at the Sandy Point Quarry and that he was not yet back to driving the plant and machinery. Dr Bodel was of the opinion that “this gentleman is fit for work at the moment, eight hours a day, three days a week. He is about to undergo further investigations.” Dr Bodel was also of the opinion that “he should be able to slowly upgrade his activities over time and return to the plant operating work eventually.” Dr Bodel was also of the opinion (AEA 46), in response to the question as to whether the claimant would benefit from rehabilitation and retraining, that “he does not require rehabilitation at this stage. He is back at work. He may need some retraining if he cannot get back on the plant and machinery, although there is still a reasonable chance that he will be able to do so.” In the same report Dr Bodel assessed the applicant as DRE Cervical Category IV following a “successful or unsuccessful attempt at surgical arthrodesis”. Dr Bodel assessed a total whole person impairment of 29%, with no deduction for a pre-existing condition.
In a report dated 28 September 2020 addressed to EML (AEA 51), Dr Peter Bentivoglio was of the opinion that:
“I do not believe Mr Lawson will get back to his preinjury duties. I do believe he is fit to undertake appropriate work. I do not think he will ever get back to his preinjury duties, but I think he could start back at appropriate work. Appropriate work means part-time, working approximately 20 hours a week, with no heavy lifting or anything which puts a lot of stress and strain on his neck. He certainly will not be able to drive distances.”
Dr Bentivoglio assessed permanent impairment as 28% WPI, reduced for pre-existing degenerative disease to 25% WPI.
The history and findings on examination of Dr Bodel and Dr Bentivoglio were not dissimilar.
Dr Bodel recorded that the applicant
“can drive an automatic motor vehicle but only for a short distance as he has difficulty because he cannot check his blindspots. He struggles with household maintenance and cleaning activities and in particular any overhead activities.”
Dr Bodel found that
“he is comfortable today when sitting on a chair. He is 183 cm tall and 157 kg in weight. He has healed scarring anteriorly in the neck, consistent with the anterior cervical decompression and fusion and disc replacement procedure. He has tenderness in the neck posteriorly and has a slight restriction of neck flexion, extension and rotation in all directions and this is most restricted on rotation to the right.… There is no objective sign of a sensory loss in a dermatomal distribution in the left upper limb at the moment, although he does have some intermittent numbness and tingling into the middle finger, but there is no objective sign of a sensory loss…”
Dr Bentivoglio recorded that the applicant:
“feels he can do appropriate work, probably 20 hours a week. Regarding his level of education, unfortunately, he has not done the Higher School Certificate, and he is looking at retraining. He is currently being assisted with work rehabilitation… Overall, now, he rates his neck pain as 4/10. He gets significant left shoulder pain which he rates as 6 – 7/10… Because of his persistent left-sided neck pain and shoulder pain, he has been referred to a specialist, Dr Yu, who has not treated him at all at this point in time… He maintains that the left arm numbness is much improved, and the left arm power is improving… His walking is normal. He can sit without any problems, but his driving is limited. He does not do any heavy home domestic duties, but he can mow the lawn with multiple breaks. His current medication is tramadol SR 100 mg, of which he takes 3 to 4 a week.”
On examination Dr Bentivoglio noted decreased left shoulder movement and neck movement 60% normal and mildly depressed left triceps reflex.
I note the complying agreement dated 14 October 2020 in respect of 25% whole person impairment (cervical spine – neck), with reference to the medical report of Dr Bentivoglio dated 28 September 2020.

Termination of employment letter

The termination of employment letter of the respondent dated 10 September 2020 (AEA 111) stated:
“You were unfit for work from 7 January 2019 until the 7 November 2019 where you returned to work on reduced hours and suitable duties. You were unable to drive to and from work during this time.
You remained working on reduced hours and suitable duties until 7 April 2020 when Benedict advised you that they were unable to continue providing you transport due to the COVID-19 pandemic and subsequently removed suitable duties.
On 4 June 2020 you were advised suitable duties would be reinstated but transport could not be provided. You declined to return to work as you remained unable to drive yourself to and from the workplace.
On 27 July 2020 Benedict met with you and referred you for a Fitness for Duties assessment to determine the likelihood of you being fit to return to your preinjury duties in the foreseeable future, or in the alternative what suitable job modifications could be made to consider potential redeployment.
You attended this appointment on 4 August 2020 with Dr Abeydeera. Benedict met with you again on 28 August 2020 to discuss the Fitness for Duties report. The report stated “realistically I cannot see Mr Lawson returning to his normal job as Plant Operator”.
You were provided with an opportunity to review this report and seek your own medical opinion. In addition, Benedict discussed with you that it would review potential redeployment opportunities across the business and noted you remain unable to drive longer than approximately 10 minutes per occasion.
Redeployment
Benedict has considered redeployment opportunities across the group. Unfortunately, Benedict does not have a suitable position that can accommodate your ongoing restrictions relating to your capacity. Further, we have no sites situated within a close proximity to your residence as you have indicated that you are unable to drive further than 10 minutes.”

Vocational and Earning Capacity reports

The SIS report of 12 May 2020, being more fully described as the “Initial Vocational Assessment Report” of Ms L McElvaney, Senior Rehabilitation Counsellor, provided only a medical history as reported by the worker of “nerve issues due to this injury” and that he “did have a surgical procedure to also assist further. It has been advised that there may be some permanent damage and he is unable to return to his preinjury role.” The diagnosis was given as “cervical disc prolapse impinging on the left C7 nerve root”, without specific reference to the source of the diagnosis. The SIS Labour Market Assessment Report dated 17 September 2020 of Ms M Boughton, Senior Rehabilitation Counsellor, noted a diagnosis of “cervical disc prolapse impinging on the left C7 nerve root” “as per current Certificate of Capacity”. The reference to the current Certificate of Capacity did not identify the certifying medical practitioner although details were given in respect of the period covering 31 August 2020 to 30 September 2020 for eight hours a day and 3 days per week and “capacity for some type of employment” with restrictions of lifting/carrying of 15 kg and pushing/pulling of 15 kg. I note that no certificate of capacity was attached to either the AEA or the Reply. However, I accept that the aforementioned certificate of capacity was issued in the terms reported.
The SIS report, the initial vocational assessment report dated 12 May 2020, described the applicant’s current suitable duties as “administration and lab technician” and then at a later point in the same report described his position as “lab technician” with office duties of payroll, data entry, archiving, general office duties and payslip generation with the only specific lab technician duty being described as “lab technician part of the role included, testing sand, grading it for its quality and recording this with data entry”. No explanation was provided as to how suitable duties described as “administration and lab technician” thereafter became described as “lab technician” alone with the lab technician task being one of only six listed tasks, the remainder of which were office duties. Moreover, the CAS report noted that the applicant disputed performing payroll and general office duties.
The SIS labour market assessment report dated 17 September 2020 described the laboratory technician duties as testing materials as part of mineral and metal processing and refining, or for research into metals, ceramics, polymers and other materials in support of metallurgists and materials engineers and tasks may include:
•       Studies the properties of metals and other materials.
•       Develops and improves existing materials.
•       Develops new combinations of metals (alloy development) and creates products that combine metals with other materials.
•       Develops techniques to repair metal damage.
•       Advises engineers and manufacturers on industrial processes that use metals and the correct selection of metals for specific uses.
•       Checks the quality of metals or other materials used in new products.
•       Conducts quality tests and other tests to detect defects.
•       Uses ultrasonic, radiographic and other non-destructive testing methods.
•       Interprets results from radiographs, meters and other indicators.
The SIS report of 17 September 2020 concluded that vocational options deemed to be appropriate on the basis of previous experience of transferable skills and demonstrated employment in these areas over the previous six months whilst having a workplace injury were Laboratory Technician/Metallurgical or Materials Technicians, Allocator/Fleet Manager, and Warehouse Administrator.
The CAS Earning Capacity Assessment, Vocational and Functional Assessment, report dated 22 February 2021 of Ms Pasic, Rehabilitation Counsellor/Vocational Assessor, and
Mr Whatson, Exercise Physiologist (the CAS report, AEA 57), provided a detailed history of injury and surgery, subsequent treatment and duties, as well as noting the following:
“He said he returned again in November 2019 on suitable duties, mainly consisting of light duties (testing sand) on reduced hours; he indicated the insurer arranged for transport to and from work. He stated his insurer informed him on or around 7 April 2020 that they would no longer provide transport for him as they believed he was fit to drive himself.
Mr Lawson reported that after the insurer stopped providing transport, he relied on his wife to get him to and from work; however, when this became difficult, his boss began to drop him home; he indicated this also became a problem with the onset of COVID-19 restrictions, as a result suitable duties were withdrawn temporarily. Mr Lawson reported that suitable duties were reinstated in June 2020, but he would need to arrange his own transport. Mr Lawson said that he could not drive the required distance, so he did not return to work. He said that his employment was terminated on 9 October 2020 because his employer could not provide a suitable position considering his condition.”
The CAS report concluded that the applicant’s capacity for work had been severely compromised as a result of his injuries and disabilities and he also suffers psychological sequelae, which significantly impacts on his concentration, memory recall and multitasking abilities, including his capacity for driving. The CAS report also concluded that the likelihood that the applicant could compete for work such as the roles identified in the SIS report was speculative as he would require additional training to engage in all the roles outlined and he would need to obtain further qualifications and/or training to be competitive for the roles outlined. The CAS report was of the opinion that it was unlikely that the applicant would be competitive on the open employment market for any of the roles previously outlined.
Caution should be exercised when considering the more general proposition put by the CAS report as to competitiveness, for the identified roles, or on the open labour market for those roles, having regard to the operation of section 32A (b) of the 1987 Act. It would be impermissible to conclude that a lack of competitiveness for proposed work means that the proposed work is not work for which the worker is currently suited. However, the components of a lack of competitiveness, such as a lack of training and/or physical restrictions or skills restrictions, may form part of the matters to be considered having regard to the nature of the worker’s incapacity, and the workers age, education, skills and work experience, as required by section 32A (a), or in the sense of whether there are “real jobs” as discussed below.
Specifically, in relation to the Laboratory Technician role, the CAS report recorded that:
“post injury and as part of his suitable duties, Mr Lawson was provided with duties in the preinjury employer’s laboratory performing light laboratory assistant duties. He performed such duties as filing, entering data into a spreadsheet and testing and grading sand. He performed these duties for several months before being made redundant. Note: Mr Lawson denied completing any other duties such as payroll and general office duties, as noted in the SIS vocational report.… Mr Lawson does not possess the relevant vocational qualifications required to engage in this role.”

In relation to the Warehouse Administrator/Assistant role, the CAS report was of the opinion that “despite Mr Lawson being suited to this role from a vocational perspective he would have difficulties completing several of the functional requirements of the role, such as prolonged computer use and manual handling tasks.”
In relation to the Fleet Manager/Allocator role, the CAS report indicated that “despite
Mr Lawson being suited to this role from a vocational perspective he would have difficulties competing with job seekers with fleet management qualifications and experience. He would also have difficulty performing the role without some modification to the keyboarding tasks required.… Mr Lawson possesses the basic experience to engage in this role… Possesses delivery driver/loader operator skills and experience however, he would require additional on-the-job training to learn how to allocate fleet and complete the various administrative tasks that are part of this role Mr Lawson only has basic computer skills as demonstrated during the assessment and he would likely require intermediate skills for such a role.”

Reasons and decision

Section 32A of the 1987 Act defines suitable duties:
“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 only job relied upon by the respondent in its section 78 notice was Laboratory Technician.
It is not disputed that the applicant is unable to return to his pre-injury employment.
The respondent submitted that the applicant’s statement was deficient in that it provided no update as to capacity for work or restrictions and no comment in relation to the role of a laboratory technician. The respondent submitted that the statement also provided no comment on the work capacity decision and the applicant’s reason for challenging it.
I accept the respondent’s submission to the extent that the matters to which it referred are not found in the statement. However, in my view there is sufficient information provided in other documents, notably the CAS report, to consider the applicant’s challenge to the work capacity decision as having sufficient grounding, having regard to the medical assessments.
I am not persuaded to accept the SIS reports referred to above, including the report of 17 September 2020. Although the self-reported restrictions of the applicant noted in these reports are similar to those restrictions recorded elsewhere, the conclusions as to capacity for work are otherwise drawn from a less than accurate description of the diagnosis of the nature and extent of the injury. The reports also lack an objective analysis (as distinct from a self-reported description) of the nature and extent of physical restrictions.
The SIS report in my view is also short on detail as to the extent of that part of the applicant’s suitable duties which might be described as “lab technician”. The SIS report also did not explain how the only identified lab technician task in the suitable duties that the applicant performed would enable him to perform the range of tasks that were identified for a laboratory technician.
Importantly, the SIS reports rely upon notes of telephone conversations with potential employers which lack specificity as to the detail of the information provided to such employers in respect of this particular worker, together with a lack of details of the response of the potential employer, other than a generalised assertion of suitability. There was also a lack of detail of the employers’ experience, capacity and skills in making such an evaluation in respect of this specific worker. I do not place much weight upon these reports.
I accept the CAS report in concluding that the roles of Laboratory Technician, Warehouse Administrator/Assistant and Fleet Manager/Allocator are not suitable employment due to the assessed lack of qualifications, skills, specific experience and physical restrictions of the applicant.
However, the CAS report did find that the applicant was fit for sedentary, light and medium levels of work and that he can work part-time hours (24 hours per week) at this stage provided an appropriate work environment and duties are available. As noted below, this opinion is relevant in the consideration of incapacity and restrictions, but is not necessarily determinative when it comes to the assessment of “suitable employment” pursuant to section 32A and whether the applicant has current work capacity.
The respondent submitted that the issue for the applicant with respect to suitable duties with the respondent was getting to and from work and not the suitable duties themselves. The lifting of restrictions in respect of Covid-19 resulted in suitable duties being made available that the applicant chose to make his own arrangements. However, Dr Bentivoglio accepted that the applicant should not be driving any distance. In any event, the task at hand in this application is the assessment of the applicant’s capacity to work. Yet, the definition of suitable duties under section 32A (see below) makes it impermissible to consider the availability of such work and to that extent the submission is correct. However, I do not accept that the limited and restricted lab technician duties performed by the applicant while in suitable duties should be regarded as some sort of baseline for the hours and lab technician tasks that he performed.
It seems to me that whilst the identified lab technician task was real, in the context of it being provided with suggested, but disputed, general office duties, the job that was made available to the applicant by the respondent was narrow in scope in terms of lab technician duties, and at best vague and generalised in respect of the disputed general office duties. The suitable duties job seemed to me to be an artificial construct in light of the tasks identified by SIS for a lab technician in the real world.
Medical opinion is that the applicant is able to work in some form of suitable duties for between 20 and 24 hours per week (Dr Bentivoglio and Dr Bodel respectively). The CAS report is in similar terms. These opinions are relevant in the consideration of incapacity and restrictions, but are not necessarily determinative when it comes to the assessment of “suitable employment” pursuant to section 32A and whether the applicant has current work capacity.
I accept the opinion of Dr Bentivoglio as to the nature of the applicant’s incapacity. Dr Bodel thought that the applicant should be able to slowly upgrade his activities over time and return to the plant operating work eventually. On the evidence before me, this was somewhat hopeful. The limitations in function and restrictions in activity noted in the CAS report point to the continuing incapacity and restrictions given in the opinion of Dr Bentivoglio. In my view the applicant has sustained a significant continuing incapacity following surgery, and the nature of such incapacity is restricted hours with no heavy lifting or anything which puts a lot of stress and strain on the applicant’s neck, with no driving of any substantial distance of more than about 10 minutes, being the time period noted in the employer’s termination letter referred to above. Although driving was not necessarily a preinjury work activity, restriction on driving periods is a factor in employment in work for which the applicant is currently suited with respect to the nature of his incapacity.
The applicant is currently 46 years old. He does not have the Higher School Certificate and has limited education and qualifications. A substantial part of his work experience, about 17 years, involved driving trucks or vehicles. His skills are mainly in the nature of manual skills or the driving or operation of vehicles or machines. There was a relatively short period of a few months on suitable duties performing limited laboratory technician duties involving testing and grading of sand, which in my view is not a realistic option having regard to his work background and education and the CAS report.
In relation to documents prepared as part of the return to work planning process, and occupational rehabilitation services provided to the applicant, I have had regard to the SIS reports referred to above. The reports dated 12 May 2020 and 9 July 2020 were initial and progress reports respectively and presumably have been provided in the Reply as background for the report of 17 September 2020. I have not been persuaded by those reports, and in particular the report of 17 September 2020, for the reasons given above. The CAS report is not in this category, as it was provided in response to a request by the applicant’s solicitor.
The applicant relies upon the decision of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) to submit that “suitable employment” must still represent real work and not “made up” duties. In that decision it was said (at paragraph 59) that, in the context of section 32A of the 1987 Act
“the phrase “employment in work”, in the definition of suitable employment, “in relation to a worker”, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.”
This involves a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment (at paragraph 60). In my view, having regard to the nature of the applicant’s incapacity and his lack of education, qualifications and relevant skills, the restricted laboratory technician duties that were provided to the applicant were artificial and were not suitable employment.
In Dewar (at paragraph 63) it was also stated that
“the task requires the identification of whether there are any “real jobs” (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are “available” (to the worker) or are “of a type or nature that is generally available in the employment market”.
In my view, on the evidence before me there are no “real jobs” which the applicant is able to do, regardless of whether they are available or are of a type or nature that is generally available in the employment market. As noted above, the nature of the applicant’s incapacity involving significant physical restrictions as identified by Dr Bentivoglio, as well as his age, lack of education and qualifications and work experience which is mainly manual or the driving and operation of vehicles or machines, as well as the absence of a post injury “real job” with the respondent, and the SIS reports which were not realistically able to identify suitable employment, all lead to the conclusion that on the evidence before me there are no real jobs which the applicant is able to do.
I find that the applicant has no current work capacity, and has had no current work capacity since 16 January 2021.
The applicant has not disputed the insurer’s assessment of pre-injury average weekly earnings of $1880. There is also no dispute that the second entitlement period applies to the applicant’s entitlement to weekly payments from 16 January 2021.
The calculation of weekly payments of compensation is therefore pursuant to section 37(1) of the 1987 Act. The section 78 notice indicates that the respondent’s payment of weekly compensation to the applicant ended with effect from 16 January 2021.

[2021] NSWPIC 153

31 May 2021