Mervin v Yancoal Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mervin v Yancoal Australia Pty Ltd [2024] NSWPIC 230
APPLICANT:	Sonya Mervin
RESPONDENT:	Yancoal Australia Pty Limited
MEMBER:	Sophie Jones
DATE OF DECISION:	3 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether the applicant sustained an injury arising out of or in the course of employment pursuant to section 4; whether the employment concerned was a substantial contributing factor; claim for weekly compensation pursuant to sections 33 and 36; claim for medical or related treatment expenses pursuant to section 60; Held – on 22 August 2023, the applicant sustained an injury arising out of or in the course of employment and the applicant’s employment was a substantial contributing factor to the injury; the applicant is entitled to weekly payments of compensation for the period claimed; the applicant is entitled to compensation for medical or related treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury arising out of or in the course of employment, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) on 22 August 2023. 2. The applicant’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. 3. The respondent is to pay the applicant weekly compensation in the amount of $4,013.51 (in total) for the period from 22 August 2023 to 3 September 2023. 4. The respondent is to pay the applicant’s reasonably necessary medical treatment expenses in relation to the injury to her left index finger on production of accounts, receipts and Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

On 22 August 2023, Ms Sonya Mervin (the applicant) sustained an injury when she was retrieving her work laptop computer from her car. The applicant caught her left index finger in the car door, causing the amputation of the tip of her left index finger.
The applicant required surgery to her hand and physiotherapy and was unable to work for a short period of time.
The applicant made a claim on the insurer for weekly compensation, for the period during which she was unable to work, and for medical treatment expenses.
The insurer issued notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 August 2023 and 7 September 2023, and review notices dated 21 September 2023 and 31 October 2023, stating that the insurer disputed liability for the injury to the applicant’s finger and therefore her claim for compensation.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (Application) in the Personal Injury Commission (Commission) on 4 March 2024.
The applicant seeks compensation pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) for weekly payments of compensation for the period 22 August 2023 to
3 September 2023 and a general order for reasonably necessary medical or related treatment expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury arising out of or in the course of employment, pursuant to s 4 of the 1987 Act;
(b) whether the applicant’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act;
(c) the applicant’s entitlement to weekly payments of compensation for the period from 22 August 2023 to 3 September 2023, pursuant to s 36 of the 1987 Act, and
(d) the applicant’s entitlement to medical or related treatment expenses pursuant to
s 60 of the 1987 Act.
The following matters were not in dispute between the parties:
(a)    that the applicant sustained injury to her left index finger on 22 August 2023;
(b)    that the applicant had no work capacity during the period from 22 August 2023 to 3 September 2023;
(c)    the applicant’s pre-injury average weekly earnings (PIAWE) was agreed to be $2,274.86, and
(d)    that the applicant’s medical treatment was reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 24 April 2024, conducted by way of videoconference on the MS Teams platform. The applicant was represented by Mr Craig Tanner of counsel, instructed by Ms Jacqueline Rimington. The respondent was represented by Ms Nicole Compton of counsel, instructed by Ms Jacklyn Dooley. The applicant attended the videoconference and Ms Ellie Walker from Coal Mines Insurance Pty Ltd was also in attendance.
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) Application and attached documents, and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s statement

The applicant’s evidence is set out in signed statements dated 27 August 2023,[1]
[1] Application page 33.
[2] Application page 34.
[3] Application pages 1-7.
11 September 2023[2] and 4 March 2024.[3]
In her statement dated 4 March 2024, the applicant states that she is employed as a Contracts Coordinator with the respondent and has a flexible work agreement in place which allows her to work three days per week from home and two days per week from the respondent’s office. The applicant explains that in order to undertake her work, she uses a company laptop computer which she takes between the respondent’s office and her home. The applicant states the laptop was provided to her by the respondent and is essential for her to undertake her duties.
The applicant’s evidence is that on 22 August 2023, she was scheduled to work at the respondent’s office which is located at Level 5, 28 Honeysuckle Drive, Newcastle NSW. At about 8.40am on that day, the applicant drove into the Yancoal carpark, which is located in the same building as the office and parked on level 2 of the carpark in car space number 51. The applicant states the carpark space is paid for by Yancoal.
The applicant records that after parking her car, she got out of the driver’s seat, shut the driver’s door, opened the rear car door and retrieved her laptop bag containing her work computer from the back seat. She then shut the back door of the car, injuring her left index finger as it was caught in the door.
A work colleague who was in the carpark at the time came to her assistance.
The applicant states that the only reason she was in the Yancoal leased employee carpark was for the purpose of work and the carpark was located within the boundary of her employer. The applicant states her action of taking her work laptop out of the car was for the sole purpose of carrying out her duties, she is required to transport her work laptop between her home and the Yancoal office for work purposes and it is an essential work tool for her to perform and undertake her duties.
The applicant’s employment contract and position description,[4] confidentiality agreement[5] and flexible work agreement[6] are annexed to her statement dated 4 March 2024. These documents record, among other things, that the applicant had a flexible work agreement in place at the time of the injury, which authorised her to work both from home and the respondent’s office. In addition, the applicant’s position description lists as a requirement of the role, among other things, “Comprehensive understanding of SAP and Microsoft applications in particular Excel”.
[4] Application pages 8-17.
[5] Application pages 18-22.
[6] Application pages 23-26.
Photographs of a carpark are annexed to the applicant’s statement dated 4 March 2024.[7] Yancoal signage is affixed to the car space numbered 51.
[7] Application pages 27-32.

Employer statement

A signed statement dated 11 September 2023 by Jacob Kalma, General Manager Logistics and Commercial, Yancoal, was in evidence.[8] Mr Kalma states that the applicant has a flexible working agreement in place whereby she works at the respondent’s Newcastle office and at her home. Mr Kalma’s evidence is the applicant is required to transport her work laptop and associated paperwork between the respondent’s Newcastle office and her home and that the work laptop is essential for the applicant to perform her work.
[8] Application page 35.
Mr Kalma notes that on 21 August 2023, the applicant worked from her home and on
22 August 2023, the applicant was scheduled to work at the respondent’s Newcastle office and was therefore required to transport her work laptop to the office for work purposes.

Medical evidence

Medical reports and clinical notes are in evidence from the applicant’s treating general practitioner Dr Armi Aganan, hand surgeon Dr Andrew Myers, Newcastle Private Hospital, NSW Ambulance and John Hunter Hospital.[9] As there is no dispute regarding the fact that the applicant sustained injury to her left index finger on 22 August 2023, or the type of injury sustained, I do not propose to detail that evidence other than to note that following the incident on 22 August 2023, the applicant was transported by ambulance to John Hunter Hospital. The applicant subsequently underwent surgery to her left index finger on
[9] Application pages 66-87.
25 August 2023 performed by Dr Myers at Newcastle Private Hospital and attended follow up consultations at the Hand Therapy Centre in Newcastle.
A certificate of capacity (CoC) signed by Dr Myers dated 24 August 2023 certifies the applicant had no capacity for any work between 22 August 2023 and 3 September 2023.[10] The CoC states the injury diagnosis as “L finger cut top off” and states in answer to the question, “How is the injury related to work or the motor vehicle accident?”, “Shut finger in car door when getting out work computer laptop bag.” The treatment is listed as “Surgery at NPH [Newcastle Private Hospital] on 25.08.2023”.
[10] Application pages 88-90.
A medical certificate signed by Dr Myers dated 15 September 2023[11] certifies the applicant fit for selected duties from 18 September 2023 to 5 October 2023 with restrictions stated as “Keep clean and dry. No lifting / pushing / pulling”.
[11] Application page 91.

Oral submissions

The parties made oral submissions at the arbitration hearing.
The applicant submitted that on 22 August 2023, the applicant drove to work and parked in the Yancoal carpark. The applicant’s position is that the applicant had reached the place of employment when she reached the carpark, her journey had ceased upon entry into the building, and for that reason she was in the course of her employment when she suffered injury.
The applicant submitted that the applicant’s employment was a substantial contributing factor to the injury. The applicant asserts that in opening the car door and retrieving her bag containing her work laptop, her actions were for the purpose of attending to her work and were incidental or preparatory to the performance of her work. The applicant further asserts that the applicant needs to bring her laptop from her home to the workplace and was engaged in actions that were reasonably required, expected or authorised to carry out her actual duties and were manifestly work related.
The applicant submitted, in relation to the matters listed in s 9A(2) of the 1987 Act that the injury occurred in the morning, immediately prior to the commencement of actual duties, in the respondent’s building, and the nature of the applicant’s work requires the use of a computer which the applicant was retrieving from her car in anticipation of the work to be performed. The applicant’s position is that the other matters listed in s 9A(2) are not applicable.
The respondent submitted that the only evidence as to what took place at the time is the applicant’s statement. The respondent’s position is that there is insufficient evidence to be satisfied where the boundary of the workplace is in this case, as the respondent’s office is located on level 5 and the carpark is located on level 2 of a commercial office block building containing other tenants. The respondent submitted this case can be distinguished from other cases which held the boundary of the workplace was the workplace carpark. The respondent submitted there is no evidence that the respondent paid for the car space or induced the applicant to use it.
The respondent asserts that the mechanism of injury was the closing of the car door on the finger. The respondent asserts that closing a car door has nothing to do with the applicant’s employment and that action is too far removed and too remote from the applicant’s employment for the employment to be the substantial contributing factor. The respondent noted there are a number of cases where despite an injury occurring at work, employment was not the substantial contributing factor and submitted this matter is akin to those situations.
The applicant submitted in reply that the boundary of the land where the workplace is situated is the same boundary as where the applicant parked and there is no evidence to refute the applicant’s statement that it was a car space paid for by the respondent.
In relation to inducement, the applicant submitted that the applicant was simply going to work and parked in a place which the employer allocates for that very purpose.
In relation to the mechanism of injury, being catching her hand in the car door, the applicant asserted that if the applicant did not need to get her laptop out of the car, she would not have hurt her hand, so there is a clear causal connection between employment and the injury.
The applicant further submitted that even if the action did not occur within the boundary of the respondent’s business, it was incidental to her employment. The applicant contended that even if the matter was considered a journey claim, s 3A of the 1987 Act would be satisfied as there was a real and substantial connection between the employment and the accident or incident out of which the personal injury arose as gaining access to her computer is essential for the performance of the applicant’s work.

FINDINGS AND REASONS

Injury

It is not disputed that the applicant sustained a personal injury to her left index finger on
22 August 2023.
In relation to a personal injury, s 4(a) of the 1987 Act relevantly provides:
“In this Act-
injury-
(a) means personal injury arising out of or in the course of employment”
The applicant bears the onus of proving injury on the balance of probabilities.
The phrase, “out of or in the course of employment” has been the subject of judicial consideration and a number of relevant cases were referred to by the parties in their oral submissions. I have discussed some of the cases that the parties referred me to, as well as others, below.
In Weston v Great Boulder Gold Mines Ltd [1964] HCA 59; (1964) 11 CLR 30, Menzies J held (at 40) that “anything at all that happens to a man while he is at work happens in the course of his employment”.
To determine whether something happened “at work”, a consideration of the physical and temporal boundaries of the workplace is necessary.
In relation to where the physical boundary of a workplace lies, Quirk J held in Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8, that the worker had reached his place of employment when he reached the carpark occupied by the respondent which adjoined the respondent’s factory.
In Chawla v Transgrid, Burke ACCJ, unreported, Compensation Court of NSW,
11 June 2002, a worker drove to work and parked in his employer’s carpark where he sustained an injury while walking to his office. Burke ACCJ held that “the place of employment is reached or left upon crossing the boundary of the land upon which the workplace is situated”.
In Hogno v Fairfax Regional Printers Pty Limited [2009] NSWWCCPD 33 (Hogno), a worker was injured alighting from his vehicle in the work carpark inside the boundary of the employer’s property. Keating P held at [72] that the worker was not injured on a journey once he crossed the boundary of his place of employment.
The same finding was made by Arbitrator Harris in Smith v Woolworths Ltd (2017) NSWWCC 290 in relation to a staff carpark.
In relation to the temporal boundary of the “course of employment” Dixon J stated in Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 (Henderson) at 294:
“Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.”
In Henderson, a fatal injury that occurred during a meal break was held to have occurred in the course of employment.
In Comcare v PVYW [2013] HCA 41; 303 ALR 1, the majority (French CJ, Hayne, Crennan and Kiefel JJ) held (at [38] – [39]), referring to Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473:
“When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.”
In addition, “employment” extends to “matters naturally incidental to the contract of employment”: Stewart v New South Wales Police Service, Neilson CCJ, unreported, Compensation Court of NSW 30 October 1998; Stanton-Cook v NSW Tafe Commission [1999] NSWCC 5 (Stanton-Cook), see also Henderson at 294.
In the current matter, the applicant states that the incident occurred in the respondent’s car park which is located in the same building as the respondent’s office at 28 Honeysuckle Drive, Newcastle NSW. Photographs show the respondent’s company signage affixed to the car space the applicant states that she parked in on 22 August 2023.
The respondent has not submitted any evidence that the car park is not leased by the respondent or to refute the applicant’s evidence that it is located in the same building.
Having regard to the cases cited above, I am satisfied that the physical boundaries of the workplace extend to the leased car park. I am therefore satisfied on the balance of probabilities that the injury occurred within the physical boundaries of the place of employment.
The injury happened shortly before the applicant was to begin work in the morning at a location that she was authorised to be in (being the workplace carpark). As will be discussed below, the applicant was authorised to work from home on some days and was authorised, and in fact required, to take her work laptop to and from the office in order to perform her work. This is not a situation where the worker was undertaking an activity or attending a place that required inducement or encouragement from her employer. The applicant was at her workplace, undertaking an activity that was required by her employment, that is, retrieving her laptop from her car shortly before commencing work for the day.
Having regard to the evidence, the relevant caselaw and the facts and circumstances of the current matter, I am satisfied on the balance of probabilities that the injury arose in the course of employment. Section 4 of the 1987 Act is satisfied.

Employment substantial contributing factor to injury

Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Pursuant to s 9A(3), the fact that the injury arose out of or in the course of employment, is not sufficient to establish that the worker’s employment is a substantial contributing factor.
I am required to be satisfied that “the employment concerned” was a “substantial” contributing factor to the injury. This requires a necessary causal link between the employment concerned and the injury, which must be “substantial”.
In evaluating the causal link, what is required is “a commonsense evaluation of the causal chain”: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, per Kirby P at 810.
As noted above, employment includes activities that are incidental to the employment.
The parties referred me to a number of relevant cases in their oral submissions, which I have considered, as well as others, below.
In Muscat v Woolworths Ltd [2000] 20 NSWCCR 16, Neilson CCJ was satisfied that taking a cup of tea in the employer’s staff room immediately prior to commencing work was “incidental in the sense of ancillary to the applicant’s work” and s 9A of the 1987 Act was satisfied.
In Hogno, Keating P found at [86] that “the activity being undertaken by Mr Hogno at the time of his injury, that is, getting out of his car in the staff car park with the intention of proceeding from the car park to commence duties was an activity that was incidental to his employment.”
Keating P went on to consider the strength of the causal link between the incidental work activity and the injury to determine if it was sufficiently substantial to satisfy the test in s 9A. Keating P noted at [88] – [89]:
“What constitutes a “substantial contributing factor” is a question of fact to be determined on the basis of the evidence in the particular case: Dayton v Coles Supermarkets Pty Ltd [2000] NSWCC 14; (2000) 19 NSWCCR 526.
Mason P observed in Mercer v ANZ Banking Group [2000] NSWCA 138 at [17] that there may be more than one substantial contributing factor to an injury ‘the word ‘substantial’ qualifies ‘contributing factor’ thereby indicating that it is the strength of the causal linkage that is in question’. Mason P went on to note at [27], referring to Bishop CCJ’s judgment:
‘At par 29 of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view this was the correct approach remembering that word is used in the relative sense, recognizing that other relative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Kane (1994) TAS R 159)’.”
In Da Ros v Qantas Airways Limited [2010] NSWCA 89, Tobias, McColl and Basten JJA held at [20] that:
“The causal connection required by the phrase “a substantial contributing factor” is one that was “real and of substance”,
although it was noted, at [25] that:
“it does not follow ... that whenever an injury occurs in the course of employment there will be a substantial causal connection between the employment and the injury.”
In Stanton-Cook, it was found that the worker was undertaking a personal activity (obtaining dog coats from another person’s vehicle) when she attended her work carpark and was injured. That activity was not an activity with any “employment characteristics” about it.
The respondent submitted that employment is required to be “the” substantial contributing factor to the injury. It is clear from s 9A of the 1987 Act that employment is only required to be “a” substantial contributing factor – therefore, there may be more than one substantial contributing factor to the injury.
Section 9A(2) of the 1987 Act lists examples of matters to be taken into account for the purposes of determining whether the employment concerned was a substantial contributing factor to an injury. These are examples only, and other kinds of matters can be taken into account for the purpose of making this determination.
The first example is the time and place of the injury. The applicant’s injury occurred at about 8.40am on a weekday, before the applicant was to commence her duties. The place of injury was a car space leased by the respondent, located in the same building as the respondent’s office.
The second example is the nature of the work performed and the particular tasks of that work. The applicant is employed as a contracts coordinator, a role that requires her to use a computer for work (noting the requirements of the role listed in the applicant’s position description include a “Comprehensive understanding of SAP and Microsoft applications in particular Excel”).
The applicant’s and Mr Kalma’s statements both state that the applicant is required to take her work laptop to and from her home and the respondent’s office, in order to undertake her work.
There have been no submissions made in relation to the duration of the employment, worker’s state of health before the injury or the worker’s lifestyle outside the workplace and I am satisfied that these examples are not relevant to the facts and circumstances of the current matter.
In relation to the example listed in s 9A(2)(d), the probability that the injury or a similar injury would have happened anyway, the respondent’s review notices dated 21 September 2023[12] and 31 October 2023[13] state that it was a mere coincidence that the injury occurred whilst the applicant was in the carpark of the work building after she had collected her work laptop, and the injury could have occurred at another location.
[12] Application pages 50-55.
[13] Application pages 56-58.
I do not accept this argument. Stating that it was a “mere coincidence” that the applicant sustained injury in the carpark of the work building and that it “could have” occurred elsewhere is not the same as providing evidence of the probability that a similar injury would have happened anyway, irrespective of the applicant’s employment. No evidence was provided of the probability that a similar injury would have happened anyway.
The injury occurred when the applicant arrived for work. The injury arose when the applicant retrieved her work laptop from her car and closed the door of her car. The applicant needed to retrieve her work laptop from her car in order to perform the tasks of her work. The act of retrieving the laptop from her car was an activity that was incidental to the applicant’s employment and the action of closing the car door was necessarily part of that incidental activity. As a matter of commonsense, I am satisfied that the action of closing the car door was not an intervening act that was unrelated to the action of retrieving the work laptop.
I am satisfied that the applicant retrieving her laptop from her car before starting work was an incidental work activity. I am satisfied that the causal connection between the applicant’s employment and the applicant catching her finger in the car door after she retrieved her laptop is real and of substance, and therefore substantial.
Having regard to the evidence, the relevant caselaw and the facts and circumstances of the current matter, I am satisfied on the balance of probabilities that the applicant’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act and compensation is payable to the applicant.

Entitlement to weekly compensation

Section 33 of the 1987 Act provides:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Section 36 of the 1987 Act states:
“36   Weekly payments during first entitlement period (first 13 weeks)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
As ss 4 and 9A of the 1987 Act are satisfied, the applicant is entitled to weekly compensation if incapacity for work is established.
The injury occurred on 22 August 2023 and the CoC dated 24 August 2023 certifies the applicant had no capacity for any work between 22 August 2023 and 3 September 2023. There is no dispute between the parties that the applicant had no capacity for work during this period.
The applicant is therefore entitled to weekly compensation under s 33 of the 1987 Act and the payments are to be calculated in accordance with s 36 of the 1987 Act as the period claimed is within the first 13 weeks.
The applicant is entitled to weekly compensation payments pursuant to s 36 of the 1987 Act for the claimed period from 22 August 2023 to 3 September 2023, with PIAWE as agreed to be $2,274.86.
The applicant had no work capacity and therefore is entitled to weekly payments at the rate of 95% of the PIAWE pursuant to s 36(1) of the 1987 Act.
Ninety-five per cent of $2,274.86 is $2,161.12.
The period from 22 August 2023 to 3 September 2023 is a period of 13 days.
$2,161.12 divided by 7 and multiplied by 13 is $4,013.51.
The applicant is therefore entitled to weekly compensation pursuant to s 36 of the 1987 Act in the amount of $4,013.51.

Compensation for medical, hospital and rehabilitation expenses

Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that-
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Sections 4 and 9A of the 1987 Act are satisfied, and the applicant is therefore entitled to the cost of reasonably necessary medical, hospital or related treatment.
There is no dispute between the parties that the applicant’s ambulance, hospital, medical and related treatment was and is reasonably necessary.
The applicant submitted a schedule of medical expenses incurred to date for treatment, including hospital treatment, surgery fees, medical consultation fees, pharmacy costs and hand therapy costs. The applicant seeks a general order under s 60 of the 1987 Act.
I am satisfied that the applicant is entitled to compensation pursuant to s 60 for her medical and treatment expenses.

SUMMARY

On 22 August 2023, the applicant sustained an injury arising out of or in the course of employment, pursuant to s 4 of the 1987 Act.
The applicant’s employment was a substantial contributing factor to the injury, pursuant to
s 9A of the 1987 Act.
The applicant is entitled to weekly payments of compensation for the period from
22 August 2023 to 3 September 2023, pursuant to s 36 of the 1987 Act, totalling $4,013.51.
The applicant is entitled to compensation for medical or related treatment expenses pursuant to s 60 of the 1987 Act.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 230

3 May 2024