Minto v Kmart Australia Limited - [2022] NSWPIC 272

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Minto v Kmart Australia Limited [2022] NSWPIC 272
APPLICANT:	Michelle Anne Minto
RESPONDENT:	Kmart Australia Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	7 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claims for injuries to right elbow/hand/thumb; consideration of wage material, factual material, medical reports and other treatment records; consideration of respondent’s pre-injury average weekly earnings (PIAWE) calculations and the effect of clauses 8A (2) and 8C of the Workers Compensation Regulation 2016; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the Workers Compensation Act 1987 (the 1987 Act) and ‘suitable employment’ under section 32A of the 1987 Act; Wollongong Nursing Home Pty Limited v Dewar considered; consideration of the jurisdiction of the Personal Injury Commission to determine claims under section 38 of the 1987 Act; Roberts v University of Sydney; Dickson v Zurich Financial Services Australia Limited; Mazzocchi v Unitrans Asia Pacific Pty Limited; Chea v Woolworths Group Limited; Lee v Bunnings Group Limited; and Sabanayagam v St George Bank Limited considered; Held– the Commission has jurisdiction to determine claims pursuant to section 38 of the 1987 Act; applicant’s current work capacity assessed as equivalent to 20 hours per week pursuant to the Fair Work Act 2009 (Cth) minimum wage; PIAWE assessed at $622.68; awards for the applicant pursuant to sections 36 and 37 of the 1987 Act; award for the respondent in relation to the applicant’s claim pursuant to section 38 of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant’s pre-injury average weekly earnings is $622.68. 2. The applicant was incapacitated for work as a result of her personal injury on 4 September 2019, between 4 September 2019 and 27 February 2022. 3. The applicant was able to earn $406.60 per week in suitable employment between 17 February 2021 and 27 February 2022. 4. The Commission has jurisdiction to determine the applicant’s entitlements pursuant to section 38 of the Workers Compensation Act 1987 (the 1987 Act). 5. The applicant is not entitled to compensation pursuant to section 38 of the 1987 Act between 28 February 2022 and the date of this decision.
ORDERS MADE:	1. There will be an award that the respondent pay the applicant $591.55 per week (as adjusted) from 4 September 2019 to 4 December 2019, pursuant to section 36 of the 1987 Act. 2. There will be an award that the respondent pay the applicant $494.14 per week (as adjusted) from 5 December 2019 to 11 February 2020, from 17 June 2022 to 7 July 2020, and from 11 February 2021 to 17 February 2021, pursuant to section 37 of the 1987 Act. 3. There will be an award that the respondent pay the applicant $591.55 per week (as adjusted) from 12 February 2020 to 16 June 2020, and from 8 July 2020 to 10 February 2021, pursuant to section 37 of the 1987 Act. 4. Credit is to be given to the respondent for all payments of weekly compensation, sick leave, or earnings, made…

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: [2022] NSWPIC 272
Decision Date: 7 June 2022

CaseChat Overview and Summary

In the matter of Minto v Kmart Australia Limited, the applicant, Minto, sought compensation for injuries to his right elbow, hand, and thumb. The dispute was heard by the Personal Injury Commission of New South Wales. The court was tasked with determining the validity of the compensation claim, assessing the pre-injury average weekly earnings, and evaluating the applicant’s current work capacity and the existence of suitable employment under the relevant statutory provisions.

The primary legal issues involved interpreting the Workers Compensation Regulation 2016 and the Workers Compensation Act 1987. Specifically, the court had to consider clauses 8A (2) and 8C regarding pre-injury average weekly earnings and the definition of 'current work capacity' and 'suitable employment'. The court also needed to determine the jurisdiction of the Personal Injury Commission to adjudicate claims under section 38 of the 1987 Act. Relevant precedents, including Wollongong Nursing Home Pty Limited v Dewar and Roberts v University of Sydney, were examined to assist in the resolution of these issues.

The Commission found that it had the jurisdiction to determine claims under section 38 of the 1987 Act, aligning with the precedents set in cases such as Dickson v Zurich Financial Services Australia Limited. The court assessed Minto’s current work capacity as equivalent to 20 hours per week based on the Fair Work Act 2009. The pre-injury average weekly earnings were calculated at $622.68, taking into account relevant wage materials, medical reports, and treatment records. Consequently, awards were made to Minto under sections 36 and 37 of the 1987 Act. An award was also made to Kmart Australia Limited in relation to Minto’s claim under section 38 of the 1987 Act, considering the statutory criteria and jurisdictional boundaries.

Orders