Nzobakenga v Costaexchange Pty Ltd - [2023] NSWPIC 11

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nzobakenga v Costaexchange Pty Ltd [2023] NSWPIC 11
APPLICANT:	Janviere Nzobakenga
RESPONDENT:	Costaexchange Pty Ltd
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	11 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation pursuant to sections 37 and 38 of the Workers Compensation Act 1987 (1987 Act) and a claim for section 60 expenses, with respondent arguing the applicant had recovered from the injury; the respondent also argued that the Personal Injury Commission (Commission) does not have jurisdiction to make an award pursuant to section 38; Held – the Commission has jurisdiction to determine a dispute involving a claim under section 38; Lee v Bunnings Group Pty Ltd distinguished as it was determined before the legislative amendments made by the Workers Compensation Legislation Amendment Act 2018; the applicant has no current work capacity and awards for weekly compensation made pursuant to sections 37 and 38(2); general order made for the payment of section 60 expenses.
determinations made:	i) Pursuant to s 37 and s 82D of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation as follows: (1) from 22 April 2020 to 30 March 2021 at 80% of the indexed pre-injury average weekly earnings rate of $795; (2) on 31 March 2021 at 80% of the indexed pre-injury average weekly earnings rate of $113.57; (3) from 1 April 2021 to 6 April 2021 at 80% of the indexed pre-injury average weekly earnings rate of $686.57, and (4) from 7 April 2021 to 21 September 2021 at 80% of the indexed pre-injury average weekly earnings rate of $801. ii) Pursuant to s 38 and s 82D of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation at the rate of 80% of the indexed pre-injury average weekly earnings from 22 September 2021 to date and continuing. iii) The respondent is to have credit for any payments made in the above mentioned periods. iv) The respondent is to pay the applicant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and or/Medicare Notice of Charge.

STATEMENT OF REASONS

INTRODUCTION

On 26 March 2019 Janviere Nzobakenga, the applicant, sustained injury when she was working at the farm of Costaexchange Pty Ltd, the respondent. She was pushing a trolley loaded with fruit which fell into a hole causing her to fall with the trolley injuring her right side and back.
In these proceedings Ms Nzobakenga seeks weekly compensation pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act) as set out in her Amended Applicant’s Wages Schedule[1]. She also seeks a general order for s 60 expenses. Her Application to Resolve a Dispute (ARD) is amended to reflect these claims.
[1] AALD-A pp 13-18.
The respondent does not dispute the mathematics of the weekly compensation claim, but maintains the disputes set out in the notice issued pursuant to s 78 of the

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: [2023] NSWPIC 11
Decision Date: 11 January 2022

CaseChat Overview and Summary

The applicant in this case, Mr Nzobakenga, sought compensation for a work-related injury under sections 37 and 38 of the Workers Compensation Act 1987 (1987 Act). The respondent, Costaexchange Pty Ltd, contested the claim, arguing that Mr Nzobakenga had fully recovered from his injuries. Additionally, the respondent claimed that the Personal Injury Commission (Commission) lacked the jurisdiction to make an award under section 38 of the 1987 Act. This dispute was heard by the Commission, which was required to decide the jurisdiction issue and whether Mr Nzobakenga was entitled to weekly compensation and section 60 expenses.

The court first addressed the jurisdictional argument, determining that the Commission indeed had the authority to make an award under section 38 of the 1987 Act. This conclusion distinguished the present case from Lee v Bunnings Group Pty Ltd, where a different interpretation was applied due to the absence of the legislative amendments introduced by the Workers Compensation Legislation Amendment Act 2018. Regarding the merits of the claim, the Commission found that Mr Nzobakenga had no current work capacity and thus was entitled to weekly compensation under sections 37 and 38(2) of the 1987 Act. The Commission also made a general order for the payment of section 60 expenses, acknowledging the financial burden Mr Nzobakenga had incurred as a result of his injuries.

The court's decision was comprehensive, affirming the Commission's jurisdiction and entitlement of Mr Nzobakenga to the claimed compensation and expenses. This ruling provided clarity on the application of the relevant legislative provisions and underscored the importance of considering legislative amendments when interpreting statutory provisions.

Orders