Maple v Cromer Golf Club Limited
[2022] NSWPIC 170
•20 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Maple v Cromer Golf Club Limited [2022] NSWPIC 170 |
| APPLICANT: | Jarrett Maple |
| RESPONDENT: | Cromer Golf Club Limited |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 20 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Disputed work capacity decision; sole issue the applicant’s ability to earn; parties agree applicant’s capacity 16 hours per week but dispute because applicant actually earning $16.63 per hour; Held- applicant capable of earning $25.00 per hour over a sixteen-hour week; no dispute concerning pre-injury average weekly earnings; award for the applicant pursuant to section 37 of the Workers Compensation Act 1987 accordingly. |
| DETERMINATIONS MADE: | 1. The applicant’s pre-injury average weekly earnings are agreed at $1,040 per week. 2. Eighty per cent of $1,040 per week for the purposes of section 37 of the 1987 Act is $832 per week. 3. The applicant’s ability to earn since 4 November 2021 has been $400 per week. 4. The appropriate order is: (a) the respondent is to pay the applicant weekly compensation from (b) the respondent is to receive credit for payments made during this period. |
STATEMENT OF REASONS
BACKGROUND
Jarrett Maple (the applicant) is a 40 year old man who was employed by Cromer Golf Club Limited (the respondent) as a chef. On 21 January 2019 the applicant suffered injury to his left knee, namely a medial meniscus tear at work whilst lifting a refrigerator.
The applicant’s claim for compensation concerns a work capacity decision made by the insurer which is disputed. The applicant claims weekly payments of compensation from 8 November 2021 to date and continuing. This is because on 3 August 2021 the insurer reduced the applicant’s weekly payments with notice effective from 12 November 2021. The exact dates of end payment of weekly compensation vary, but I have used 4 November 2021 at this stage. There is no serious dispute that the applicant’s pre-injury average weekly earnings were $1,040 per week.
ISSUES
The principal issue is whether or not the insurer’s decision to reduce the applicant’s weekly payments from 12 November 2021 is an appropriate decision. If so, what is the extent of the applicant’s entitlement to payments pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act)? If not, what is the applicant’s ability to earn in economic terms from 12 November 2021?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter came for teleconference as an expedited assessment application on 15 March 2022. On that occasion Mr Stojanovski, solicitor, appeared for the applicant. The applicant was present. Mr S Murray, solicitor, appeared for the respondent accompanied by Ms Lee.
The matter proceeded to conciliation but regrettably was not capable of resolution. I was satisfied that I used my best endeavours to attempt to bring the parties to an agreement to no avail and accordingly the jurisdiction of the Personal Injury Commission (the Commission) to proceed to arbitration hearing was enlivened.
The parties were requested to provide written submissions.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute and attachments lodged 24 February 2022 (Application), and
(b) Reply and attachments lodged 9 March 2022 (Reply).
WRITTEN SUBMISSIONS
Written submissions were provided as follows:
(a) undated but lodged by the applicant on 22 March 2022, and
(b) dated 30 March 2022 lodged by the respondent.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Written submissions were provided by the parties as outlined above.
DISCUSSION AND REASONS
The work capacity decision (WCD) made by the respondent’s insurer by section 78 notice is dated 3 August 2021. The applicant’s pre-injury average weekly earnings are agreed at $1,040 per week. Eighty per cent of that figure for the purposes of section 37 of the 1987 Act is $832 per week. The matter in issue is the applicant’s capacity to earn each week in suitable employment.
Before issuing the WCD on 3 August 2021 the insurer had the applicant assessed medically and vocationally and obtained the following evidence on which the insurer relied:
(a) a vocational assessment report of Procare dated 14 May 2021;[1]
(b) a labour market analysis report dated 10 June 2021;[2]
(c) a certificate of capacity of Dr Wakefield[3] and
(d) an approval of vocational options provided by the applicant’s general practitioner dated 10 June 2021.[4]
[1] Application at page 15.
[2] Application at page 33.
[3] Reply at page 96.
[4] Application at page 10.
Although a functional assessment of 11 May 2021 claimed that the applicant could perform 20 hours per week with restrictions, the insurer’s WCD concedes an ability of the applicant to only work 16 hours per week.
In considering suitable employment for the applicant, I am impressed by the applicant’s past experience and educational levels. In terms of experience, according to the respondent’s vocational assessment this included work as a teacher’s assistant, owner of a business, restaurant manager, cook, property caretaker, owner of a catering business, bar tender, operations officer and chef. Those enterprises to my mind involve the application of intelligence and are not necessarily prohibited because of a physically disabled left knee condition of the nature experienced by the applicant. Put simply, the applicant is intelligent and this is demonstrated by his ability to turn his hand to various vocations requiring the application of intelligence.
Although the applicant has said that his computer skills are “very basic” I believe this is a modest description because he concedes that he used spreadsheets at College.[5] I have therefore come to the view that whilst the work of a transport driver may not be ideal for the applicant because of his potential inability to obtain a license at that level, routine work as a customer service officer or administrative officer within the restrictions identified by the Procare Labour Market Analysis Report[6] are on the balance of probabilities quite reasonable options. I would add that these two vocations are acknowledged by Dr Wakefield as suitable for the applicant to perform.[7]
[5] Application at page 49; Application statement at [28].
[6] Application from page 33.
[7] Application at page 11-12.
Because of the applicant’s qualifications and experience, I do not accept that the applicant’s current earnings as a nanny at $16.63 per hour properly represents the extent of the applicant’s economic capacity. In addition to the skills he possesses because of the occupations mentioned above, he does have tertiary qualifications including having completed two years of a psychology degree. My view is that the applicant is capable of earning $25 per hour over a 16 hour week, totalling $400 per week. When that capacity to earn is compared with the section 37 rate of $832, it is appropriate in my view that the applicant receive an award pursuant to section 37 in the sum of $432 per week from 4 November 2021 to date and continuing.
FINDINGS AND ORDERS
The appropriate findings I believe are as follows:
(a) the applicant’s pre-injury average weekly earnings are agreed at $1,040 per week;
(b) eighty per cent of $1,040 per week for the purposes of section 37 of the 1987 Act is $832 per week, and
(c) the applicant’s ability to earn since 4 November 2021 has been $400 per week.
The appropriate order is:
(a) the respondent is to pay the applicant weekly compensation from 4 November 2021 to date and continuing in the sum of $432 per week, and
(b) the respondent is to receive credit for payments made during this period.
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