Roe v Mackillop Family Services Ltd - [2025] NSWPIC 438

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roe v Mackillop Family Services Ltd [2025] NSWPIC 438
APPLICANT:	Roseanne Roe
RESPONDENT:	Mackillop Family Services Limited
MEMBER:	Karen Garner
DATE OF DECISION:	27 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury; claim in respect of underpayment of weekly compensation; whether there has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant; by virtue of which clause 8C(1) of the Workers Compensation Regulations 2016 (2016 Regulation) should operate to determine the applicant’s pre-injury average weekly earnings for the purposes of calculating the applicant’s entitlement to weekly compensation pursuant to sections 36 and 37; Held – there has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant; clause 8C(1) of the 2016 Regulation should operate to determine the applicant’s pre-injury average weekly earnings; the applicant has been underpaid her entitlements to weekly compensation pursuant to sections 36 and 37; the respondent ordered to pay the applicant the balance of unpaid weekly compensation pursuant to sections 36 and 37.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. There has been a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to the earnings of the applicant, by virtue of which, clause 8C(1) of the Workers Compensation Regulations 2016 should operate to determine the applicant’s pre-injury average weekly earnings for the purposes of calculating the applicant’s entitlement to weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant has been underpaid her entitlements to weekly compensation pursuant to ss 36 and 37 of the 1987 Act. The Personal Injury Commission orders: 3. The respondent to pay the applicant the amount of $2,936.83 being the total balance of unpaid weekly compensation in respect of the period from 30 December 2019 to 29 March 2020, pursuant to ss 33 and 36 of 1987 Act. 4. The respondent to pay the applicant the amount of $25,380.24 being the total balance of unpaid weekly compensation in respect of the period from 30 March 2020 to 20 July 2025, pursuant to ss 33 and 37 of 1987 Act. 5. The respondent to pay the applicant the amount of any subsequent unpaid weekly compensation on a continuing basis. 6. Liberty to apply within 14 days in respect of calculation of the unpaid weekly compensation amounts. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

It is not in dispute that Roseanne Roe (the applicant) sustained psychological injury (the injury) in the course of her employment as a youth worker with Mackillop Family Services (the respondent), with a date of injury of on 26 December 2019.
On or about 28 February 2019, the applicant made a claim for workers compensation in relation to…

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: [2025] NSWPIC 438
Decision Date: 27 August 2025

CaseChat Overview and Summary

The case of Roe v Mackillop Family Services Ltd involved the applicant, Ms. Roe, who sought to claim underpayment of weekly compensation under the Workers Compensation Act 1987. Ms. Roe alleged that there had been a change in her employment arrangement that resulted in a materially different financial situation, impacting her entitlement to weekly compensation. The dispute was brought before the Court of Appeal, which was tasked with determining the applicability of clause 8C(1) of the Workers Compensation Regulations 2016.

The primary legal issue was whether a change in Ms. Roe’s employment arrangement constituted a change of an ongoing nature that led to a financially material change in her earnings. If so, the court needed to determine whether clause 8C(1) of the 2016 Regulation should be applied to calculate her pre-injury average weekly earnings. The outcome hinged on whether Ms. Roe was underpaid her entitlements to weekly compensation and, if so, to what extent.

The court concluded that there had indeed been a change of an ongoing nature in Ms. Roe’s employment arrangement, which resulted in a financially material change to her earnings. Clause 8C(1) of the 2016 Regulation was applicable, thereby determining Ms. Roe’s pre-injury average weekly earnings for the purposes of calculating her entitlement to weekly compensation. Consequently, the court found that Ms. Roe had been underpaid her entitlements to weekly compensation as per sections 36 and 37 of the Act. The court ordered Mackillop Family Services Ltd to pay Ms. Roe the balance of unpaid weekly compensation, as determined by the court.

Orders