Secretary, Department of Communities and Justice v Pell

The case of Secretary, Department of Communities and Justice v Pell involved a dispute concerning the calculation of pre-injury average weekly earnings under Clause 2 of Schedule 3 to the Workers Compensation Act 1987. The appellant, the Secretary, sought to determine whether Regulation 8C of the Workers Compensation Regulation 2016 applied to exclude a period during which workers compensation payments were received in respect of an earlier injury. The matter was heard in the NSW Civil and Administrative Tribunal.

The primary legal issue before the tribunal was whether Regulation 8C was applicable to exclude from the calculation of pre-injury average weekly earnings a period when the worker received compensation payments for an earlier injury. The tribunal needed to interpret the regulation and apply it to the facts of the case, considering the relevant statutory provisions and the decision in Sidhu v Secretary, Department of Communities and Justice [2021] NSWPIC 522.

The tribunal confirmed the Member’s Certificate of Determination dated 13 May 2022. It found that Regulation 8C did not apply to exclude the period in question from the calculation of the pre-injury average weekly earnings. The tribunal relied on the decision in Sidhu, which held that the regulation did not apply in circumstances where the worker had not returned to work or commenced work for the employer. As a result, the tribunal confirmed the Member’s Certificate of Determination.

No further orders were made on appeal. The tribunal upheld the decision that Regulation 8C did not apply to exclude the period in question from the calculation of the pre-injury average weekly earnings, and confirmed the Member’s Certificate of Determination.