Myrvang v Australian Turf Club Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Myrvang v Australian Turf Club Limited [2023] NSWPIC 426
APPLICANT:	Anette Myrvang
RESPONDENT:	Australian Turf Club Limited
Member:	John Isaksen
DATE OF DECISION:	22 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments; whether the effects of the work injury to the lower back had ceased; the extent of incapacity for work; whether the applicant is entitled to receive weekly payments of compensation having ceased to live in Australia (section 53); Held – the worker continues to suffer the effects of the work injury; awards of weekly payments of compensation for various periods of total and partial incapacity; section 53 has no effect upon the awards of weekly payments of compensation to be made to the worker because the worker has had no incapacity for work which allows for such payments to be made since she ceased to live in Australia.
determinations made:	The Commission determines: 1. The applicant continues to suffer the effects of an injury to her lumbar spine which was sustained in the course of her employment with the respondent on 28 August 2018 and 5 January 2021. 2. The applicant had no current work capacity from 29 July 2021 to 19 September 2021. 3. The applicant had a partial incapacity for work between 1 October 2021 and 30 June 2022 which allows for an award of weekly payments of compensation pursuant to s 37 (3) of the Workers Compensation Act 1987. 4. Section 53 of the Workers Compensation Act 1987 has no effect upon the award of weekly payments of compensation to be made to the applicant in this dispute. The Commission orders: 1. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $823 per week for the period from 29 July 2021 to 19 September 2021 pursuant to s 37 (1) of the Workers Compensation Act 1987; (b) $11.40 per week from 1 October 2021 to 31 March 2022 pursuant to s 37 (3) of the Workers Compensation Act 1987, and (c) $26.60 per week from 1 April 2022 to 30 June 2022 pursuant to s 37 (3) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Anette Myrvang, sustained an injury to her lower back and neck on
28 August 2018 while employed as a track rider for the respondent, Australian Turf Club Limited.
The respondent accepted liability for this injury.
The applicant states that she was incapacitated for work as a result of this injury until November 2019.
The applicant was assessed by Dr Davies, Approved Medical Specialist, as having 12% whole person impairment as a result of this injury in a Medical Assessment Certificate (MAC) dated 7 December 2020. That assessment of whole person impairment was comprised of 7% permanent impairment of the lumbar spine and 5% permanent impairment of the cervical spine.
The applicant states that she returned to track riding work for the respondent in November 2019 but continue to have some back pain and used a back brace when riding. She states that there was an understanding with the respondent that she would ride about seven horses in a morning shift, but she ended up riding 10 to 12 horses during a shift when other track riders called in sick or did not attend for work.
The applicant states that she sustained a further injury to her lower back on 5 January 2021 when a horse that she was exercising jolted forward and the applicant felt pain in her lower back.
The respondent accepted liability for this injury and the applicant states that she received weekly payments of compensation until 28 July 2021. However, the respondent issued a disputed notice dated 8 July 2021 wherein ongoing liability was disputed on the grounds that the effects of the injury sustained on 5 January 2021 had ceased.
The applicant claims that she continues to suffer the effects of the work injury and continues to be incapacitated for work. She makes a claim for weekly payments of compensation from 29 July 2021 until the end of the second entitlement period pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant left Australia to return to live in Norway on 2 November 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant continues to suffer the effects of the work injury sustained in the course of her employment with the respondent (s 4 of the 1987 Act);
(b)    the extent of any incapacity suffered by the applicant as a result of the injury to her lower back (ss 32A, 33 and 37 of the 1987 Act), and
(c)    whether the applicant is entitled to receive weekly payments of compensation having ceased to reside in Australia (s 53 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 9 August 2023. 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.
Ms Compton appeared for the applicant, instructed by Mr Wells. Mr Saul appeared for the respondent, instructed by Mr Franco.
The hearing was conducted by video and was recorded.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,000 but subject to indexation as provided for by s 82A of the 1987 Act.
A Direction was made at the conclusion of the hearing that the applicant file and serve by
14 August 2023 evidence of when she left Australia. The respondent then had until
21 August 2023 to file and serve any evidence or further submissions in regard to this.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 23 May 2023;
(d)    Application to Admit Late Documents filed by the applicant on 30 June 2023;
(e)    Application to Admit Late Documents filed by the applicant on 14 August 2023, and
(f)    Application to Admit Late Documents filed by the respondent on 16 August 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

Whether the applicant continues to suffer from the effects of the injury to her lower back which was sustained in the course of her employment with the respondent

The applicant’s evidence

The applicant states in a statement dated 12 September 2022 that she continues to have pain in her lower back. She states that she cannot stand more than 30 minutes without the pain increasing in intensity. She states that she cannot sit beyond 30 minutes without her lower back becoming very painful. She states that she takes over-the-counter analgesic medication each day, and Endone or Tramal usually once per week for breakthrough pain.
The applicant states in a statement dated 29 June 2023 that she cannot sit, bend, stand, and walk for too long. She states that she cannot lift more than 5kg and that she must be careful with any lifting she undertakes.

The medical evidence

The applicant’s general practitioner, Dr Uddin, has consistently issued Certificates of Capacity from a few days after the injury sustained on 5 January 2021 which contains a diagnosis of “lower back pain with radicular pain both legs”.
Dr Uddin issued Certificates of Capacity up until September 2022 which certified the applicant as having no current work capacity as a result of the injury to her lower back.
Dr Uddin has since then issued Certificates of Capacity certifying that the applicant is fit for three hours of work for five days per week as a result of the injury to her lower back.
Dr Darwish, neurosurgeon, initially saw the applicant on 1 February 2021. Dr Darwish records in a report of the same date that the applicant sustained an injury to her lower back on 28 August 2018 and that she had an aggravation of her back pain in January 2021.
Dr Darwish refers to an MRI scan dated 14 January 2021 which showed L5/S1 disc dehydration and an annular tear but no obvious root compression. Dr Darwish states that he explained to the applicant that the management of discogenic pain is complex and the best option is to continue with conservative treatment.
Dr Darwish writes in a report dated 1 June 2021 that the applicant continues to complain of lower back pain and stiffness. He notes that the applicant has been accepted into university to do a science degree and opines that the applicant would not be able to return to work as a horse trainer and it is in her best interest to look for a physically less demanding job.
The last report from Dr Darwish is dated 15 July 2021. Dr Darwish records that the applicant continues to complain of lower back pain and stiffness, and she has good days and bad days. He confirms that the applicant’s symptoms are consistent with L5/S1 discogenic pain caused by work injury. Dr Darwish states that if the applicant’s symptoms do not improve or deteriorate then she may require L5/S1 laminectomy, discectomy and fusion, but he discouraged her from this due to her age.
Dr Anthony Smith, orthopaedic surgeon, has provided reports at the request of the respondent dated 24 June 2021 and 1 July 2021.
The first report from Dr Smith is dated 24 June 2021, although the date of examination is
9 June 2021. Dr Smith records that the applicant sustained an injury to her lower back on
5 January 2021 when she was riding a very fast horse, as well as an older injury to her lower back and neck in 2018. Dr Smith reviews various medical reports that relate to the injury in 2018, along with the MRI scan dated 14 January 2021. He does not appear to record any complaints made by the applicant.
Dr Smith finds on examination that the applicant has a normal range of movement of the back in all directions although she complains of pain.
Dr Smith opines that applicant would have sustained an initial aggravation of underlying degenerative pathology in the injury on 28 August 2018, but that the aggravation resolved after a number of months. He opines that the applicant sustained another aggravation while riding a horse on 5 January 2021, but that this aggravation has also resolved. Dr Smith opines that the applicant’s current diagnosis is symptomatic lumbar degenerative disease.
In a supplementary report dated 1 July 2021, Dr Smith opines that the exacerbation/aggravation to the applicant’s lumbar degenerative disease on 5 January 2021 would have resolved of its own accord and left no disability after three months at the most.
Dr Smith also opines that a bright area seen in the annulus at L5/S1 in the MRI scan dated 14 January 2021 is part of the degenerative process.
Dr Bodel, orthopaedic surgeon, has provided a report at the request of the applicant’s lawyers dated 20 October 2021. He writes that the applicant was examined by telehealth on 20 September 2021.
Dr Bodel records that the applicant sustained an injury to her neck and back and with right leg pain on 28 August 2018, and sustained a further injury to her lower back with right sided sciatic pain on 5 January 2021 when her back was twisted when riding a horse.
Dr Bodel concedes that he could not test the applicant’s reflexes or sensory loss. Dr Bodel observes from his examination by video that the applicant has increasing back and right buttock pain when reaching with forward flexion to the knees. He observes asymmetry of back movement and there is restriction on straight leg raising of the right leg.
Dr Bodel does not review any scans, but he refers to the report of the MRI scan dated
14 January 2021.
Dr Bodel provides the following diagnosis:
“The diagnosis here is a probable disc rupture at the lumbosacral junction involving L4/5 and L5/S1 in the incident that occurred on 28 August 2018. She has never been pain-free in the lumbar spine and the episode of injury on 5 January 2001 has caused additional structural damage and has probably caused some additional damage to the annular tear although it is very difficult to be absolutely certain of that without having the opportunity to both the original MRI scans after the injury August 2018 and the subsequent scans from January 2021 to make a comparison between the two sets of films. I strongly suspect that there has been a material aggravation previous pathology at the L5/S1 level as a result of the fall on 5 January 2021.”
I accept that “the episode of injury on 5 January 2001” is a reference to the injury on
5 January 2021.

Determination

There are only some six weeks between the only examination conducted by Dr Smith and the last of at least five examinations conducted by Dr Darwish, but there is a considerable difference between the opinions of these two specialists.
The report from Dr Darwish dated 15 July 2021 is not a comprehensive report to the applicant’s lawyers, but rather a report to Dr Uddin. There are no findings on examination included in that report, but Dr Darwish is nonetheless satisfied in his role as the applicant’s treating specialist that the applicant continues to complain of lower back pain and stiffness, that her symptoms are consistent with L5/S1 discogenic pain, and that this has been caused by the work-related accident which he has previously recorded as occurring on 28 August 2018 and aggravated on 5 January 2021.
I consider there is sufficient detail in the five reports from Dr Darwish which are in evidence, and in particular his last report dated 15 July 2021, to be satisfied that the applicant was continuing to suffer the effects of the injury to her lower back in July 2021.
I prefer the opinion of Dr Darwish in his role of treating specialist over the opinion provided by Dr Smith because Dr Darwish has had the opportunity of reviewing the applicant over a period of some five months as opposed to Dr Smith who has only seen the applicant on one occasion. Furthermore, considerable weight must be given to the opinion provided by
Dr Darwish because he has responsibility of treating the applicant, which in turn is based upon his understanding of the cause of the applicant’s symptoms.
There are further reasons as to why I cannot accept the opinion provided by Dr Smith. Firstly, although Dr Smith refers to several medical opinions in his report dated 24 June 2021, there is no reference to the reports from Dr Darwish and as consequence Dr Smith is not able to consider the opinion of the specialist who is actually treating the applicant at the same time which she presents herself for examination by Dr Smith. This is despite the reports from
Dr Darwish including a notation that copies of his reports are being sent to the insurer of the respondent and presumably could have been forwarded onto Dr Smith for his consideration.
Secondly, I also agree with the submission made by Ms Compton on behalf of the applicant that there is no indication in the report from Dr Smith that he made any record of the applicant’s current symptoms. Dr Smith records that the applicant complains of pain in the back despite there being normal range of movement of the back when he performs an examination of the applicant, but there is no indication of any further interrogation by
Dr Smith in regard to this. This is important because, as I have already observed, the applicant at around this same time was continuing to complain to Dr Darwish of ongoing pain in the lower back.
My finding that the applicant was continuing to suffer the effects of the injury to her lower back when liability was disputed by the respondent in July 2021 is reinforced by the opinion provided by Dr Bodel. That opinion is broadly consistent with the conclusions made by
Dr Darwish, namely that the applicant continues to experience symptoms at the L5/S1 level as a consequence of both the injury on 28 August 2018 and on 5 January 2021.
Mr Saul on behalf the respondent is critical of the opinion provided by Dr Bodel because
Dr Bodel does not view actual scans when there is a real dispute between experts as to the effects of injury compared to underlying degeneration of the lumbar spine, and the consultation conducted by video relies very much on the complaints made by the applicant.
I do not accept that criticism of the opinion of Dr Bodel. Although it is preferable for experts to view actual scans, Dr Bodel has been able to view the MRI scan report from January 2021 and has also considered the reports from Dr Darwish and Dr Smith. Dr Bodel concedes that he could not test the applicant’s reflexes or sensory loss, but he does provide considerable detail of what he could observe from the usual tests undertaken for a condition affecting the lumbar spine. In my view, Dr Bodel has undertaken a comprehensive examination of the applicant and has given proper consideration to the medical dispute between the parties.
There is also other medical evidence which confirms that the applicant was continuing to suffer the effects of the injury she sustained on 28 August 2018 before she sustained the further injury on 5 January 2021, and that this initial injury continued to cause her to experience symptoms in the lower back.
Just a few weeks before the applicant sustained the further injury to her lower back on
5 January 2021, Dr Davies, a specialist in neurosurgery and pain management and an Approved Medical Specialist, diagnosed the applicant as having a lumbar strain but that this injury had still resulted in 7% permanent whole person impairment.
Dr Bentivoglio, neurosurgeon, provided a report at the request of the respondent dated
27 April 2020 wherein he opined that the applicant had sustained a mild but permanent disc injury at the L5/S1 level.
I am satisfied from a review of the evidence that the applicant has continued to suffer the effects of injury to the lower back from incidents which occurred in the course of her employment with the respondent on 28 August 2018 and 5 January 2021.

The claim for weekly payments of compensation

The applicant’s evidence

The applicant states that she commenced a Bachelor of Arts course at Sydney University in March 2021. She states that she travelled to university for the first two semesters, but the travel became too difficult and she was given medical support from her general practitioner to complete the rest of the course that year are at home.
The applicant states that in 2022 she transferred to a Bachelor of Science - Veterinarian Bioscience course and again completed that year of study at home.
In her further statement dated 29 June 2023, the applicant states that she has continued to do the Bachelor of Arts degree during 2023. She states that she is hoping to return to Australia in the latter part of 2023 to complete this degree. She states that she will then either do a Masters degree or complete a second degree for a Bachelor of Science (Animal Health and Veterinary Bioscience).
The applicant has provided copies of Disability Services Academic Plans from the University of Sydney dated 4 May 2022, 18 August 2022 and 24 March 2023 which sets out additional time for the applicant to complete assignments and sit for exams. The Plans include the following:
“This condition is ongoing with acute and unpredictable periods of exacerbation. During an exacerbation, Anette will experience pain, disrupted thought processes, short term disruption to your vision, in significant impacts on her concentration attention and focus. Anette may experience prolonged fatigue and reduced capacity. At times, this condition may impact on Anette’s attendance and if an episode occurs during class, Anette may need to leave and return home.”
In her further statement dated 29 June 2023, the applicant states that she has applied online for the following jobs:
(a)    to deliver bathroom products and equipment;
(b)    helping immigrants and refugees, including helping them to learn Norwegian, and
(c)    as a barista.

The applicant states that all of these jobs were advertised as part-time and she intended to talk to the potential employer about her restrictions if she obtained an interview. However, this has never occurred.
The applicant states that she cannot sit, bend, stand, and walk for too long. She states that she cannot lift more than 5kg and that she must be careful with any lifting she undertakes.

The medical evidence

Dr Uddin provided Certificates of Capacity following the injury on 5 January 2021 up until
20 August 2022 which certified the applicant as having no current work capacity due to lower back pain.
Since 7 October 2022 Dr Uddin has since provided Certificates of Capacity certifying the applicant as having a capacity for some work for three hours per day for five days per week, with a lifting capacity of 5kg and sitting, standing and driving as tolerated.
Dr Darwish does not provide any guidance on the applicant’s capacity for work other than to state in a report dated 1 June 2021 that he does not believe that the applicant will be able to return to work as a horse trainer and it is in her best interest to look for a physically less demanding job.
Dr Bodel opines that the applicant “at the moment has no capacity for work” although that is in answer to a question as to whether the applicant is fit to perform all the duties required in her pre-injury occupation. Dr Bodel otherwise opines that the applicant is partially incapacitated for work and places the following restrictions upon her:
“The main restrictions on this lady's activities on the open labour market are that she must avoid strenuous and repetitive tasks, bending, twisting or lifting or use of the arms overhead and any jarring activities. This excludes track riding as a form of work in this circumstance. She is fit for light duty work that avoids prolonged head down posture or bending, twisting or lifting in order to minimise her symptoms.”
Dr Smith opines that the applicant is fit to work as a track rider and needs to understand that this occupation is likely to aggravate her lower back, but that such aggravations are readily amenable to appropriate treatment.

Determination

Ms Compton emphasised in her submissions the applicant’s evidence of difficulties and restrictions caused by her ongoing lower back symptoms. However, caution needs to be exercised in approaching this evidence without due regard to the medical evidence. Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 (Figueira) was a decision which involved a psychological injury, but the caution expressed by DP Roche has a more general application when he said at [38]:
“… a worker’s subjective view of his or her fitness for work will really be determinative, especially in a case involving the psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including medical evidence, and make an assessment based on the evidence.”
Ms Compton also submits that considerable weight must be given to the Certificates of Capacity issued by Dr Uddin because the regular review of the applicant by Dr Uddin places that doctor in a very good position to monitor what capacity, if any, the applicant has for work.
I accept that there is some strength with such a submission. However, the certificates issued from at least the middle part of 2022 and up until October 2023 which certified the applicant as having no current work capacity are not consistent with what the applicant was actually doing during this period of time, being the participation in study for a tertiary degree. The ability to read, take notes, use a computer and prepare written material for assessment indicates a capacity to do at least some work of a clerical or administrative nature.
Furthermore, caution must be exercised when Certificates of Capacity show little or no change in the details in those certificates over an extended period of time unless there is a report or additional material which supports what is set out in those certificates. President Keating said in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
Dr Uddin does provide details of treatment in the “Management plan” of the Certificates of Capacity which he has issued but only until 18 August 2021 and then there is a gap of over 12 months before Dr Uddin writes: “7/10/22 She will start on light duties.” There is no information provided by Dr Uddin during that 12 month period as to the progress of the applicant’s lower back condition despite the applicant undertaking tertiary study during this period of time.
The best evidence of the applicant’s incapacity for work is provided by Dr Bodel, whose opinion I have already accepted on the issue of whether the applicant continues to suffer the effects of injury to her lower back.
The restrictions which Dr Bodel places on the applicant’s capacity for work are appropriate for a worker who has ongoing aching and pain and restriction of movement in the lower back. Those restrictions are understandably directed towards manual work. However, the restrictions imposed by Dr Bodel still allows for a wide variety of work of a non-manual nature and particularly work of a clerical or administrative nature. Furthermore, Dr Bodel places no restrictions on the amount of hours that the applicant can work each week.
There are the Disability Services Academic Plans from the University of Sydney dated
4 May 2022, 18 August 2022 and 24 March 2023 which refer to “acute and unpredictable periods of exacerbation”, but there are no medical reports in evidence which accompany these plans. Furthermore, some of the symptoms referred to in those Plans such as “disrupted thought processes” and “short term disruption to her vision” would appear to relate to migraine headaches which the applicant also suffers from. Although the applicant states that she hit her head during the first incident on 28 August 2018, there is no medical evidence to support a connection between that injury and the migraine headaches suffered by the applicant.
The applicant is well educated. She is at least bilingual, being able to communicate in both Norwegian and English. She has been confident enough to apply for work which involves assisting immigrants and refugees to live in Norway. The applicant is computer literate. She states that she may proceed to a second degree or a Masters degree.
In the absence of any opinion from Dr Bodel which restricts the amount of hours the applicant might be able to work each week, I find from the evidence which I have preferred that the applicant can work full-time in work of a clerical or administrative nature. This is suitable employment which the applicant has been currently suited for as prescribed by the definition of ‘suitable employment’ in s 32A of the 1987 Act from the time she was examined by Dr Bodel on 20 September 2021.
It might be that the applicant could have done such work even before she was examined by Dr Bodel on 20 September 2021. However, to remain consistent with the available evidence, my finding will be that the applicant had no current work capacity from 29 July 2021 to
19 September 2021.
I acknowledge the applicant’s evidence that she had not been able to travel to university due to her ongoing pain and undertook her studies at home. However, this has not been addressed in the opinion provided by Dr Bodel on the applicant’s incapacity for work, and I have already indicated the caution which must be given to a worker’s subjective view of their fitness for work.
The applicant’s PIAWE was agreed at $1,000. However, indexation of PIAWE which is allowed for by s 82A of the 1987 Act increases the PIAWE to $1,028.80 for the period from 29 July 2021 to 19 September 2021. Eighty per cent of $1,028.80 amounts to $823. There will be an award of weekly compensation to the applicant of $823 per week from
29 July 2021 to 19 September 2021 pursuant to s 37 (1) of the 1987 Act.
During the course of the hearing, Ms Compton pointed out that the list of payments contained in the Reply recorded that weekly payments of compensation were paid up until
14 July 2021. Ms Compton sought to amend the ARD to claim weekly payments of compensation from 14 July 2021, rather than 29 July 2021, but that was opposed by the respondent.
The application made by Ms Compton was rejected because the applicant had not put the respondent on notice of this amendment prior to the hearing. Furthermore, the applicant’s own evidence in her statement dated 12 September 2022 is that: “I have not received payment of weekly benefits since 29 July 2021”.
If the applicant has not been paid weekly payments of compensation for a period before
29 July 2021, then it would be appropriate for the applicant to approach the respondent for payment of any arrears consistent with the findings made in this decision.
Level 1 of the Clerks – Private Sector Award 2020 sets out typical duties as being maintaining basic records, filing and copying documents, distributing mail, dealing with accounts through recording and checking, and reception or switchboard duties. The skills which the applicant has when those skills are matched with the opinion from Dr Bodel on the applicant’s capacity for work, allows me to be satisfied that at the very least the applicant could undertake the duties of a Level 1 employee referred to in the Clerks – Private Sector Award 2020 and that this is employment which the applicant has been currently suited for since 20 September 2021. However, I have not placed the applicant at any higher level which is set out in that award because the applicant states that she has had no prior experience in this field of work.
The award rate for a Level 1 – Year 1 employee as at 21 September 2021 was $821.40, which is so close to the indexed PIAWE that it does not warrant an award for weekly payments of compensation after 21 September 2021.
However, there is further indexation on 1 October 2021 which takes 80% of PIAWE to $832.80, and further indexation on 1 April 2022 takes 80% of PIAWE to $848. This allows for an award of weekly payments of compensation as follows:
(a) $11.40 per week from 1 October 2021 to 31 March 2022 pursuant to s 37 (3) of the 1987 Act, and
(b) $26.60 per week from 1 April 2022 to 30 June 2022 pursuant to s 37 (3) of the 1987 Act.
There is an increase in the award rate for a Level 1 – Year 1 employee to $861.40 per week on 1 July 2022, which results in there being no award of weekly payments to the applicant because the award rate of $861.40 is in excess of $848.
There are further increases in PIAWE as provided for by s 82A of the 1987 Act but by
1 October 2022 the applicant would reach at least Level 1 – Year 2 employee which provides for an award rate of $902.10 per week.
In summary, the awards of weekly payments to be made to the applicant will be as follows:
(a) $823 per week for the period from 29 July 2021 to 19 September 2021 pursuant to s 37 (1) of the 1987 Act;
(b) $11.40 per week from 1 October 2021 to 31 March 2022 pursuant to s 37 (3) of the 1987 Act, and
(c) $26.60 per week from 1 April 2022 to 30 June 2022 pursuant to s 37 (3) of the 1987 Act.

Whether the applicant is entitled to receive weekly payments of compensation having ceased to reside in Australia

Relevant legislation

Section 53 (1) of the 1987 Act as it applied up to 15 June 2022 was as follows:
“If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
Section 53 (1) was amended by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022, which came into effect on 16 June 2022, as follows:
“A worker receiving, or entitled to receive, a weekly payment of compensation who ceases to reside in Australia continues to be entitled to receive the weekly payment if the Commission or insurer has determined the worker’s incapacity for work resulting from the injury is likely to be of a permanent nature.”

Determination

Mr Saul submits that it is the current provisions of s 53 which must be applied because the applicant brings her claim when those provisions operate. He submits that the change in the section from the present tense that the Commission “determines” the worker’s incapacity to the past tense that the Commission has “determined” the worker’s incapacity means that the applicant cannot receive the benefit of s 53 because she failed to make an application pursuant to s 53 before she left Australia.
Mr Saul submits that the current provisions of s 53 allows the Commission or insurer the opportunity to consider the evidence addressing the issue of permanency of incapacity before the worker leaves the jurisdiction.
I do not agree with this submission. The award of weekly payments of compensation that is to be made to the applicant only covers a period when the applicant was still in Australia. What s 53 of the 1987 Act seeks to address is whether a worker ‘continues to receive the weekly payment’ once the worker has left Australia and is otherwise able to establish that there is incapacity for work resulting from an injury which is likely to be of a permanent nature.
However, in the circumstances of this dispute and the findings which I have made regarding the applicant’s incapacity for work, the applicant will not continue, at least in her current situation, to receive weekly payments of compensation.
I find support for this conclusion in the Second Reading Speech regarding the amendment to s 53 which was delivered by Mr Dominello, Minister for Customer Service, in the Second Reading Speech on 9 June 2021 when the Minister said:
“Another improvement proposed by the bill relates to injured workers who cease to live in Australia. The bill makes it easier for those workers to establish their ongoing eligibility for weekly payments and to be paid their weekly entitlements. Workers from all over the world bring their skills and expertise to work in New South Wales and contribute to the New South Wales economy. Understandably, a small number of injured workers cease to live in Australia after an injury. Under the existing workers compensation provisions, a worker who ceases to live in Australia continues to be entitled to receive their weekly payments of compensation if his or her incapacity for work as a result of the injury is likely to be of a permanent nature.”
The emphasis is upon the continuance of weekly payments once a worker has ceased to live in Australia, not on what has occurred while the worker is in Australia. Furthermore, there is no indication in the Speech that it is mandatory that a worker must make a claim for the payment of compensation before that worker leaves Australia.
The provisions of s 53 of the 1987 Act therefore have no effect upon the award of weekly payments of compensation to be made to the applicant in this dispute.

[2023] NSWPIC 426

22 August 2023