Sidrak v Frontline Fitouts Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sidrak v Frontline Fitouts Pty Ltd [2024] NSWPIC 653
APPLICANT:	Christopher Sidrak
RESPONDENT:	Frontline Fitouts Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	27 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Applicant injured in car accident after suffering an idiopathic loss of consciousness; whether injury suffered arising out of or in course of employment; whether employment substantial contributing factor to injury; applicant returning from work-related meeting at time of accident; extent of incapacity; calculation of PIAWE; applicant paid benefits under the motor accidents legislation; whether section 46 applies to reduce the weekly benefits payable to the applicant; Held – applicant suffered injury arising out of the course of employment; injury was car accident, not idiopathic loss of consciousness; applicant had no current work capacity since date of injury and continues to have no current work capacity; section 46 not exercisable in present circumstances; award made for weekly payments from date of accident and continuing.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant suffered an injury arising out of and in the course of his employment with the respondent on 13 August 2022. 2. Employment was a substantial contributing factor to the injury. 3. The applicant has had no current work capacity since 13 August 2022 and continues to have no current work capacity. 4. The applicant’s Pre-Injury Average Weekly Earnings are assessed to be $1946.44. 5. The Commission has no power to reduce the weekly benefits payable under s 46 of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant weekly compensation in the following amounts: a. from 13 August 2022 to 1 October 2022, at the rate of 95% of $1,946.44; b. from 1 October 2022 to 12 November 2022, at the rate of 95% of $1,966.44; c. from 12 November 2022 to 31 March 2023, at the rate of 80% of $1,966.44; d. from 1 April 2023 to 30 September 2023 at the rate of 80% of $2,011.37; e. from 1 October 2023 to 31 March 2024 at the rate of 80% of $2,035.24; f. from 1 April 2024 to 30 September 2024 at the rate of 80% of $2,097.51, and g. from 1 October 2024 to date and continuing at the rate of 80% of $2,161.69. 7. The respondent is to have credit for any amounts paid under the workers compensation legislation. 8. The amounts set out in [6] are as indexed according to the legislation. The amount in [6(g)] is to be indexed from time to time according to the legislation. 9. Liberty to apply in respect of the calculation of weekly payments set out in [6].

STATEMENT OF REASONS

BACKGROUND

The incident at the centre of this dispute occurred on 13 August 2022. Mr Sidrak was driving when he collided with a tree, sustaining traumatic injuries. It is not clear precisely what caused this to occur, but it is apparent that Mr Sidrak blacked out behind the wheel, causing him to veer off the road into a tree. There is no dispute that Mr Sidrak was in a serious car accident on that date and the consequences of that have been significant.
What is in dispute is whether Mr Sidrak was injured arising out of or in the course of employment, whether employment was a substantial contributing factor to that injury, as well as issues going to the payment of weekly benefits (should the relevant liability questions be determined in favour of Mr Sidrak).
In addition to the background of the car accident that led to the present claim for weekly benefits and medical expenses being made, is Mr Sidrak’s employment background. This has added to the complexity of the issues in dispute, and in particular the calculation of Pre Injury Average Weekly Earnings (PIAWE).
Mr Sidrak has university level education in construction and project management. His working career has, since high school, been in the construction industry. He took up a trade after finishing High School qualifying as a cabinet maker. He worked as a joiner for a kitchen company and then for construction companies, completing labour work and site management duties.
On 13 August 2021, the applicant’s brother created the company Frontline Fitouts (the respondent). Mr Sidrak left his previous employment planning to work solely for Frontline Fitouts, and eventually became sole director and sole employee of that company on 31 January 2022. Mr Sidrak completed one job for Frontline Fitouts in May of 2022. Mr Sidrak did not particularly pay himself a salary, but rather took the profit from that sole job, after taking out expenses (such as the cost of materials and payments to other trades). This arrangement, and the timing of Mr Sidrak’s unfortunate accident, have complicated the calculation of PIAWE in this case.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Whether the applicant suffered an injury in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) Whether employment was a substantial contributing factor to the injury as alleged pursuant to s 9A of the 1987 Act;
(c) The applicant’s capacity for work, for periods including up to the date of this decision, pursuant to s 33 of the 1987 Act;
(d) The applicant’s Pre Injury Average Weekly Earnings (PIAWE), and
(e) Whether s 46 of the 1987 Act applies, and if it does, whether I should exercise any discretion to order that weekly payments be reduced.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. 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.
Extensive negotiations and conciliation occurred during the conciliation/arbitration on 25 September 2024. Mr Sidrak was represented by Mr McEnaney of counsel, instructed by Turner Freeman Lawyers. The respondent was represented by Ms Goodman of counsel, instructed by Rankin Ellison Lawyers. The parties were unable to reach an agreed resolution of the issues in dispute or narrow those issues significantly.
Due to time constraints, I directed the parties to file written submissions on the issues in dispute. An extension of time was requested and granted to respond to that direction. Ultimately, the final set of submissions (the applicant in reply) were filed on
12 November 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    an Application to Admit Late Documents dated 28 August 2024 lodged by the applicant;
(d)    an Application to Admit Late Documents dated 18 September 2024, lodged by the respondent, and
(e)    a wages schedule filed by the applicant dated 23 September 2024.
The above material comprises close to 3000 pages of evidence. I have considered all of the relevant evidence, particularly where the parties have addressed me in submissions to a particular document. I have not considered every document in detail as some of it is not particularly relevant to the issues in dispute before me.
Given the nature of the issues in dispute (which involve at times complex legal interpretations of provisions not often discussed, as opposed to a dispute between competing independent medical experts on relevant questions) I do not intend to summarise the evidence here. I will refer to the relevant parts of the evidence in detail in my reasons below, as required.

SUBMISSIONS

As with the evidence above, I do not intend to summarise the submissions provided by the parties here. They are written and I have considered them closely. I will refer to the relevantly made submissions under the headings below, dealing with each issue in dispute in order.

FINDINGS AND REASONS

Issue 1 – sections 4 and 9A of the 1987 Act

Although these are separate questions in accordance with the legislation, the parties submissions have addressed these points together, consistent with the call for submissions in the direction I issued. The factual matrix concerning the car accident is relevant to both issues and as such I will deal with them together, obviously taking into account the different tests as required in the legislation, and as interpreted in accordance with the relevant caselaw.
The question posed by s 4(a) is concise. The definition of injury, which the applicant must prove on the balance of probabilities, is: “injury – (a) means personal injury arising out of or in the course of employment”. As the applicant points out, this contains a temporal and a causative question. The question posed by s 9A is again quite concise: “(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.” There are, however, a series of matters that are to be taken into account in subsection (2), in a non-limiting way:
“(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a)  the time and place of the injury,
(b)  the nature of the work performed and the particular tasks of that work,
(c)  the duration of the employment,
(d)  the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)  the worker’s state of health before the injury and the existence of any hereditary risks,
(f)  the worker’s lifestyle and his or her activities outside the workplace.”
Subsection (3) also provides a further relevant proviso:
“(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
To consider properly whether the applicant has satisfied the tests in s 4 and 9A, close consideration must be given to the injury as alleged and the circumstances in which it occurred. In the present case, this is complicated by the applicant being injured in a car accident, which was precipitated by what appears to be an idiopathic loss of consciousness (or syncopal event). The description of injury in the Application provides the following:
“During the course of employment, the Applicant sustained severe injuries in a motor vehicle accident. The applicant lost consciousness at the wheel and collided with a tree. As a result of the accident during the course of employment, the Applicant sustained fractures to both forearms requiring metal plates and rods. The applicant also fractured his left knee and sustained multiple fractures to the left foot, a fracture to the right knee and a right shoulder injury.”
There is no dispute that the car accident occurred as set out above, or in relation to the injuries sustained at the time of that accident. The issue in dispute raised in the s 78 notice dated 22 March 2023 is set out as follows[1]:
“Based on the information available to us, we consider that you have failed to establish onus of proof that you have sustained an injury at work, and that there is a connection between your alleged injury and your employment as required by section(s) 4 and 9A of the Workers Compensation Act 1987.
You are not entitled to compensation in relation to a loss of consciousness leading to injuries sustained at work unless it is established that the nature of your employment gave rise to a significantly greater risk of you suffering the loss of consciousness has you not been employed in employment of that nature. There is no medical evidence address whether employment gave rise to significantly greater risk of injury.”
[1] Page 68 of the Application.
It is noted here that reference is made to “significantly greater risk of injury”. This appears to be a reference to the test set on in s 9B of the 1987 Act, which concerns heart attack or stroke, requiring employment concerned to give rise to “a significantly greater risk of the worker suffering the injury”. Section 9B was not relied upon in the notice give on 22 March 2023 or the review notices dated 20 October 2023[2] and 7 June 2024[3].
[2] Page 74 of the Application.
[3] Page 1 of the Reply.
The dispute, as framed in the dispute notices and the supporting evidence of Dr Casikar dated 3 March 2023[4] has, in my view, been somewhat obfuscated by the idiopathic loss of consciousness that occurred before the applicant was injured in the car accident. The claim brought is not for an injury in the nature of a loss of consciousness. It is for multiple injuries suffered in the single injurious event, being the applicant’s vehicle colliding with a tree. Shortly prior to that injury Mr Sidrak suffered a loss of consciousness, but that is not the injury that is claimed or in dispute before the Commission.
[4] Page 7 of the Reply.
In considering this issue, it is important to look at the surrounding circumstances of the car accident. Mr Sidrak’s statements dated 9 March 2023[5] and 23 May 2024[6] set out the history, which is consistent with what is set out in the factual investigation report dated 10 February 2023[7], the report of Dr New dated 6 June 2024[8] and the report of Dr Casikar dated 3 March 2023[9].
[5] Page 1 of the Application.
[6] Page 10 of the Application.
[7] Page 92 of the Application.
[8] Page 112 of the Application.
[9] Page 7 of the Reply.
In summary, Mr Sidrak met with an electrical contractor called Daniel Samuel at about 12:30-1:00pm on 13 August 2022. On the way back from that meeting, Mr Sidrak was involved in the car accident that led to the injuries pleaded and the current claim. The police description of the accident provides the following:
“1 was travelling South East on Stockdale Crescent, Abbotsbury in VEH 1 when it collided with a tree in front of the property at 25 Stockdale Crescent, Abbotsbury. DRI 1 lost control and drove up the curb in front of 27 Stockdale Crescent and drove through to 25 Stockdale Crescent, where it collided with the tree. VEH 1 sustained damage to the front of the vehicle as it was crushed inwards, causing injuries to DRI 1. Parts of VEH 1 were ejected as a result of the collision, causing other damage to property.”
There is no dispute that the car accident occurred in the circumstances as described. The respondent does not dispute that the applicant attended a meeting with Daniel Samuel, although does raise issue with the statement provided by him, attached to the Application[10], pointing out that it is not signed or adopted. The respondent’s submissions appear to accept that the applicant was in the course of his employment at the time of the accident:
“It is submitted that although the Applicant may have been in the course of his employment at the time of the accident, that this is not enough. This is because the cause of his running into the tree was the non-work-related syncopal attack and loss of consciousness.”
[10] Page 56 of the Application.
The respondent’s submissions go on to deal with the issue of the idiopathic syncope that precipitated the accident. Given that the test in s 4 is disjunctive and only one element needs to be satisfied (i.e. that the injury arose out of or in the course of employment), the respondent’s submission above would appear to do away with any dispute as to injury.
For the sake of completeness, I would say that I am satisfied that the applicant suffered an injury in the course of his employment on 13 August 2022, for the reasons that follow.
The nature of Mr Sidrak’s employment is not a standard type of work, where one attends a desk or a job site for eight hours Monday-Friday. Mr Sidrak was the sole employee of the respondent, and was taking his income from the profits the company made on completing construction work. The nature of that type of work means that he is required to maintain connections with other people in similar industries to him, such as other trades. In order to obtain future work, he requires contacts within the industry, but also must be in contact with those with specific expertise (such as an electrician), that he does not possess. Mr Samuel is such a person. I do not need to rely on Mr Samuel’s statement to reach that conclusion as it has not been disputed.
It is also the nature of Mr Sidrak’s work with the respondent that he does not have a set location. He would work on a job site when performing work for a client (accepting here that he has only had one client, but nonetheless the nature of his work is obvious and would undoubtedly be the case). By his own statement evidence, there is ancillary work involved, including providing quotes to potential clients and managing the day to day affairs of the business, separate to the construction elements.
An aspect of that work involves meetings and one such meeting took place on the date of the car accident. Following that meeting, Mr Sidrak was heading home to finalise some details and prepare a quote. This is not a journey within the meaning of s 10 of the 1987 Act; it forms part of the employment in which Mr Sidrak found himself. The injury arose out of the course of employment. Further, there has been no interruption to the course of employment – Mr Sidrak was in the course of employment when he had the meeting with Mr Samuel, and in driving home to continue the work they discussed, as part and parcel of his role, with the respondent, he remained in the course of employment. Either or both limbs of s 4 have been satisfied in the present circumstances.
I agree with the applicant’s submission at [23] in that it appears that the respondent has misapprehended the s 4 injury that it must consider. This misapprehension has been informed by Dr Casikar’s conclusion (and the questions he was asked in reaching that conclusion). The injury is not the idiopathic syncope or loss of consciousness. That incident itself has had no ongoing effect on the applicant (compared with, for example, a heart attack or stroke that could have significant ongoing effects). Mr Sidrak lost consciousness. He was driving at the time. His vehicle then veered off the road and collided with a tree. That is the injurious event. If Mr Sidrak had been at home at the time of the incident, it is likely that he would not be making a claim before the Commission. But he was driving at the time and the consequences of that loss of consciousness have been dire for him. I would also hazard that there would be no dispute about the injurious aspects of this case had Mr Sidrak been injured by another vehicle driving into him, removing the loss of consciousness from the equation. The injurious event would still be a car accident. However, that is a hypothetical situation, I am dealing with real facts before me.
The applicant relied upon the case of Department of Corrective Services v Clifton[11] (Clifton), submitting that the authorities on the topic are long and well established. The respondent submitted that the idiopathic syncope was not work-related, and the injuries did not occur whilst the applicant was at his workplace. The respondent also referred to the case of Trad v Chubb Fire & Security Pty Ltd[12] and the authorities discussed therein.
[11] [2006] NSWWCCPD 310
[12] [2023] NSWPIC 28

Clifton is relevant authority on the issue in dispute between the parties. Although there are some distinct factual differences in that case, it remains relevant. In Clifton, the applicant was walking in the office where he worked, when he had a coughing fit, blacked out, and fell to the ground. He had pain in his right hip when he regained consciousness, which eventuated to be a fracture of his right femur.
The dispute in Clifton did not concern injury (it was in fact conceded by counsel for the respondent[13], similarly to how the respondent has indicated in submissions that injury occurred in the course of employment), but rather substantial contributing factor. DP Roche discussed the relevant authorities around substantial contributing factor (including Federal Broom Co Pty Ltd v Semlitch[14] and Mercer v ANZ Banking Group Ltd[15]), and went on to refer to Smith v Australian Woollen Mills Ltd[16] (Smith) at 515:
“We think that if an additional element or consideration is needed before it can be said that a workman’s injury arises out of his employment where the injury is occasioned by his falling, through circumstances personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in the risk of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman’s fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstances that but for doing the particular piece of work which he was in fact performing, he would not have experienced that particular sort of injury.”
[13] at [41].
[14] [1964] HCA 34
[15] [2000] NSWCA 138
[16] (1933) 50 CLR 504
And further to 517 of the same decision:
“1. The expression ‘arising out of’ imports some kind of causal relation between the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do out of his service (Stewart v Metropolitan Water Sewage & Drainage Board (1932) 48 CLR216 at 226), and the case is there cited).
2. The injury does not cease to arise out of the employment because its remote cause is the ideopathic condition of the injured man. The ideopathic condition must be dissociated from the other facts (Wicks v Dowell & Co [1905] 2 KB 225).
3. An injury which arises directly out of circumstances encountered, because to encounter them falls within the scope of employment, is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment (Upton v Great Central Railway Co [1924] AC at 307; Brooker v Thomas Borthwick & Sons (Aus.) Ltd [1933] AC 669).”
In my view Smith is on all fours with the present case. Taking the three principles outlined above:
(a)    it was part of the applicant’s work to meet with other people, including at locations such as coffee shops, to discuss ongoing or potential work. As a consequence, it was part of his work to drive to and from such locations;
(b)    there is an idiopathic condition, being the loss of consciousness Mr Sidrak experienced before the car accident. This condition must be dissociated from the other facts (i.e. the car accident that resulted from the idiopathic condition), and
(c)    Mr Sidrak, at the time of the car accident, was in “some part of the place where he works” as he was driving from a meeting, back to the office. This was a continuous period of employment, although he was not his physical office (or job site).
The respondent’s submissions attempt to distinguish Clifton on the basis that Mr Sidrak was not withing his work premises, and did not come into contact with something on his work premises. I do not accept that submission. The fact that Mr Sidrak was driving at the time of his idiopathic condition, as opposed to standing in a defined workspace, does not distinguish the case from Clifton or Smith. It arose out of the work Mr Sidrak was employed to do, and at the time of the accident, the worker was in the place of his work.
To follow the reasoning of DP Roche in Clifton at [48], there are main factors that contributed to Mr Sidrak’s injury:
(a)    the idiopathic loss of consciousness he experienced whilst driving;
(b)    the fact that at the time of that loss of consciousness, Mr Sidrak was driving back to his office, from meeting with Mr Samuel, a colleague and electrician, with whom he had met to discuss work, and
(c)    the veering of his vehicle off the road, to contact with a tree.
The first of those issues is clearly unrelated to his employment. The second factor is relevant to the causation of Mr Sidrak’s injury. As I have said above, if he was not driving from a work-related meeting at the time of the idiopathic loss of consciousness, the effects of that incident would not have been as severe. The third factor was, at the time, the location of Mr Sidrak’s work.
The respondent’s submissions go on to point out that in the present case, Mr Sidrak had also suffered a syncopal episode shortly prior to this incident. I accept, as the applicant points out in his submissions in response, that this supports his case. That incident did not lead to any consequences in terms of a physical injury. It was precisely because of the fact that Mr Sidrak was driving when he had a further syncopal attack that the matter is before the Commission.
That submission was made in the context of s 9A and in particular “the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”. As the applicant submits, this asks the wrong question of the factual dispute before me. The injurious event is not the idiopathic syncope. The injurious event is Mr Sidrak’s car striking a tree. There is no probability that Mr Sidrak would have suffered the injuries he did if he was not in his vehicle at the time of the idiopathic syncope. As the applicant points out, the evidence of the earlier syncope at the gym supports this conclusion.
The other factors of s 9A provide no support for the respondent’s contentions. The time and place of the injury was the applicant’s vehicle at around 1.30 pm, whilst driving for work. The nature of his work required him to be driving at that time, and at other times, to various locations in order to meet with various people. This factor is supportive of the applicant’s case.
There is no relevance to the duration of employment, or his state of health, hereditary risks, or lifestyle and activities, because the injurious event was a car accident, precipitated by an unexplained loss of consciousness.
The respondent referred to the decisions of Trad v Chubb Fire & Security Pty Ltd[17] and McKee v Wizpro Pty Ltd[18], submitting that the distinguishing feature of the subject case is that the applicant had a syncopal episode earlier, and that it was probable that a similar injury would have happened anyway. Those cases concerned different facts but the principles set out relevant to consideration of s 9A are the same. I do not need to distinguish them as I am dealing with different factual circumstances. In any event, I have dealt with the substance of the respondent’s submission above. The injurious event is not the idiopathic syncope so it is of no relevance that it had previously occurred. The injurious event is the car accident. I am satisfied that Mr Sidrak’s employment was a substantial contributing factor to that car accident.
[17] [2023] NSWPIC 28
[18] [2024] NSWPIC 55

Capacity for work

The parties’ positions on this issue are in stark contrast. Mr Sidrak submits that he has no current work capacity and has done so since the time of the injury (which I have now found occurred, in accordance with the liability questions raised) on 13 August 2022. The respondent, based on the opinion of Dr Rimmer, submits that Mr Sidrak has capacity for some kind of sedentary work on a full-time basis.
In his statement dated 23 May 2024[19], Mr Sidrak sets out his employment history. It has been, since he completed high school, in the construction industry. He worked as a joiner for a period, then as a builder’s apprentice. He completed qualifications in Construction and Project Management and went on to work as a leading hand, completing labouring, joinery, and site management duties. Following that he worked for another construction company, although it is not clear on what basis he was employed. It was only for a short period.
[19] From page 12 of the Application.
Mr Sidrak then began working for the respondent, as business established by his brother, on 13 August 2021. He then became sole director and sole employee on 31 January 2022. In working for the respondent, particularly as the sole director and employee, Mr Sidrak was obviously required to expand his skills to more of a business focussed objective. Although he only completed one job for the respondent, it is reasonably apparent what was required to obtain that job and then complete it – these are organisational and administrative skills, requiring Mr Sidrak to advertise his company, work with contractors, and produce content to support his business. The main scope of his work for the respondent, however, was to complete construction jobs as project manager as well as be responsible for the business. To the latter, he states:
“Most of my experience was in labour work not in administration. I had never run my own business before and hence had very little experience or understanding about the financial/bookkeeping side of things.
The way I did bookkeeping was sufficient for me as I was only a small startup business with no workers. I only ever did 1 job from when I started the business and therefore did not feel it necessary to do a tax return in 2022.”
Mr Sidrak’s limited administrative skills are apparent from the way his financials have been provided. As he states, he was inexperienced in the bookkeeping side of running a construction business and did not actually complete a tax return in 2022.
The above is relevant to the type of role Mr Sidrak may have capacity for. It is agreed that it is unlikely Mr Sidrak will get back to the type of work he is qualified for and experienced in. Dr New states:
“With regard to future capacity for work, it is not possible to comment on that yet as he is not reached the steady state to return to work. With regard to potential occupations, noting his education qualifications and experience, I doubt that he will be able to get back to work for which he is reasonably experienced. He may require retraining”[20].
[20] Page 117 of the Application.
The certificates of capacity I have before me all provide that Mr Sidrak has no current work capacity. These are consistent since the car accident[21]. The most recent certificate of capacity, dated 9 October 2023, provides an estimate return to work to any type of employment of 6-12 months.
[21] Pages 126-134 of the Application.
Dr Rimmer, on the other hand, suggests in his reported dated 1 August 2024 that Mr Sidrak is capable of “full-time sedentary work, avoiding standing for prolonged periods”[22]. Dr Rimmer also provides additional comments, which have been referred to by the respondent in their submissions:
“1. Mr Sidrak was charged and convicted of negligent driving as a result of the subject accident.
2. He has become addicted to narcotics/benzodiazepines, taking:
• Valium on a nightly basis.
• Endone second daily.
Both of which need to be addressed and resolved.
3. He is an ideal candidate for a vocational assessment.
4. I do not believe that any further surgical intervention is warranted.”
[22] Page 1 of the respondent’s Application to Admit Late Documents.
It is not clear how 1, above, is relevant to any issue. Number 2 in fact supports the applicant’s case, in that both of those medications would potentially have an impairing effect on Mr Sidrak’s ability to function. As far as I am aware, number 3 has not occurred, and given Mr Sidrak’s ongoing certification of no current work capacity, is likely to be premature, despite what Dr Rimmer suggests about sedentary work. Number 4 is inconsistent with the report of Dr New, who suggests at least two further surgeries are necessary.
I tend to agree with Mr Sidrak’s statement response to the report of Dr Rimmer:
“In considering this statement Dr Rimmer did not provide me with any reasoning as to how I will be able to do this.”[23]
[23] Page 1 of the applicant’s Application to Admit Late Documents.
As the applicant submits, Mr Sidrak explains his functional capacity at various points throughout his statement. I also agree with and accept that Dr Rimmer’s opinion is absent reasoning and does not consider the actual requirements of employment. Relevant to this are Mr Sidrak’s ongoing and significant pain issues, as indicated by his pharmacology, as well as poor sleep, his inability to walk long distances, and other physical and psychological sequalae of the injury he suffered.
In Wollongong Nursing Home Pty Ltd v Dewar[24], DP Roche considered the question of suitable employment (a question raised as part of the consideration of whether a worker has no current work capacity, as the applicant asserts. He stated this:
“Therefore, the determination of whether a worker is “able to return to work in suitable employment” is not a totally theoretical or academic exercise and Mason P’s reference to the “eye of the needle” test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.” (at [60])
[24] [2014] NSWWCCPD 55
The question must be determined by reference to what a worker is physically and psychologically capable of doing. I am of the view that the suggestion of the respondent that Mr Sidrak has some capacity would be a totally theoretical or academic exercise. To make that determination I would also need to ignore the overwhelming medical evidence in this case, including the ongoing certification of no current work capacity.
Accordingly, I am satisfied that Mr Sidrak has no current work capacity and this has been the case since the date of injury.

Pre-Injury Average Weekly Earnings

The Application to Resolve a Dispute provides a PIAWE figure of $2,328.43. The Reply pleads a figure of $1207.80. It is noted that PIAWE is not covered in any of the dispute notices issued by the respondent. The applicant wrote to the respondent on 22 May 2024 suggesting the PIAWE figure as set out in the Application, and providing an explanation for the calculation provided. This was said to be on the basis of profit from the singular job the applicant completed for Ms Jessica Constantinides, in the employ of the respondent, divided by 24, being the “total relevant period”. The respondent’s 287A notice dated 7 June 2024 provides:
“Your solicitors also requested a review of your PIAWE. This review outcome is limited to the issues in the dispute notice dated 22/03/2023. Please contact your case management specialist to conduct a review of your PIAWE.”
It’s not clear to me why separate contact needed to be made to review PIAWE.
The applicant amended the claimed PIAWE figure in submissions to be $2,102.94. The applicant provides the following summary of his position:
(a)    he commenced new employment on 31 January 2022 as sole director and employee of the company;
(b)    he was not employed in any other role after 27 September 2021;
(c)    he was injured on 13 August 2022, being a 28 week period after
31 January 2022;
(d) the applicant’s earnings should be assessed in accordance with reg 8B of the Workers Compensation Regulation 2016 (the 2016 Regulation);
(e)    the respondent’s income and expenses (as a business) are set out;
(f)    assuming that the applicant paid himself the profit from the business as income, the applicant earned $55,882.37 in 28 weeks, and
(g)    the applicant’s PIAWE figure is therefore $2,102.94.
In response, the respondent provides three general submissions on the issue of PIAWE:
(a)    as there were no tax returns filed by the applicant or by the respondent in the financial year ending 30 June 2022, the award rate of Level 9 (ECW 9) in the Building and Construction General On-site Award 2020 [Ma000020] should be applied, a figure of $1207.80[25];
(b)    alternatively, the applicant’s PIAWE should be calculated from 1 January 2022, the date the company started trading, being a figure of $1746.32, and
(c)    whilst the profit of the respondent translates to $55,882.37, that does not necessarily translate into the applicant’s earnings in the period.
[25] It is noted that the full text of this award is attached to the Reply commencing from page 265.
PIAWE are calculated in accordance with cl 2 of Sch 3 to the 1987 Act:
“(1)  Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2) Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3) The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a)  to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b)  to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4) If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
Reg 8D of the 2016 Regulations, on which the applicant relies, is made under sub-cl (2) above. It provides for an alignment of the relevant earning period:
“(1) The relevant earning period for a worker in employment may be adjusted to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(2) The relevant earning period is not to be adjusted as provided by this clause unless the insurer is reasonably satisfied that the amount of pre-injury average weekly earnings calculated by reference to the period as so adjusted is not less than the amount that it would have been but for the adjustment.”

The respondent’s primary submission is that the award rate should be applied. With no intended criticism of the respondent’s submissions (acknowledging that the factual circumstances of the case are complex), it is not clear why this is the case. The submissions do not provide any real support for the assertion or reference to legislative provisions underpinning the calculation of PIAWE which I have set out above. The extent of the submission is that there have been no tax returns filed by the applicant or respondent for the financial year ending 30 June 2022.
I would determine at the outset that I do not accept this submission. No reasonable support has been provided underpinning why PIAWE should be based on the award rate. An award or agreement relating to employment is relevant for the purpose of short-term workers under reg 8F of the 2016 Regulation. Mr Sidrak was not a short-term worker under cl 4 of Sch 3 to the 1987 Act as he was not continuously employed for less than 4 weeks.
Although there is scant evidence of specific payments made in terms of earnings, due to the absence of tax returns lodged by either party, there is sufficient material before me to determine what Mr Sidrak’s PIAWE would have been. Mr Sidrak’s lack of sophistication when it came to the financial records of his business have not assisted in this regard.
Be that as it may, it is unclear why the award rate relied upon by the respondent should be used when there is no evidence it applied to the applicant, or why the particular level would apply to the applicant. I accept the applicant’s submission that he had extensive experience and his previous full-time role was vastly in excess of the award rate provided for.
The profit calculations made by the applicant in respect of the contract undertaken with Ms Constantinides are not disputed. I do not intend to undertake a forensic analysis of the financial records and will proceed on the basis that the profit figure provided, under which both parties have made submissions, is correct. Also relevant is the forensic account report prepared by Mr Matthew Gwynne dated 21 November 2022[26]. That report provides an amended assessment of “PAWE” (being the terms used in the motor accidents legislation) suggesting that it was prepared in respect of the claim made under the Motor Accident Injuries Act 2017 (MAI Act). The original figure provided was $1,785.86. Under the heading “key advices and assumptions”, the following is stated:
“In preparing our original assessment of PAWE, the Claimant advised that the Company commenced trading from 1 January 2022. Accordingly, we identified that the Claimant was in a position to earn more from this date and prepared our assessment of PAWE on that basis (i.e. on the period 1 January 2022 to 12 August 2022).
The Claimant has since advised the Company began trading on 1 March 2022 upon the signing of a contract with Ms Jessica Constantinides.”
[26] Page 2312 of the Application.
The report is based on provisions provided in the motor accidents legislation and is accordingly of limited utility, other than for the following relevant history:
“An ASIC search records, that at the DOA the Claimant was the sole Director and shareholder of the Company. ASIC also records that the Claimant commenced as a director on 24 January 2022 and as a shareholder on around 31 January 2022. Prior to this, Mr Samuel Sidrak was the sole Director & Shareholder.”
Those ASIC records are included in the Reply[27]. They are consistent with the above and show Mr Sidrak took over from his broth, becoming Director and Secretary on 24 January 2022. The respondent company started on 12 August 2021.
[27] Page 371 of the Reply.
The respondent’s third contention is that the figure of $55,882.37 does not necessarily translate to the applicant’s earnings, in circumstances where no wages were paid to him as an employee. I appreciate the position the respondent has taken here. The profit from the singular job the applicant completed whilst in the employ of the respondent is not, on its face, the applicant’s money. The contract was agreed between the respondent and Ms Constantinides[28]. It was signed by Mr Sidrak as director of the respondent. The payments made by Ms Constantinides were to the bank account of the respondent[29].
[28] Page 27 of the Application.
[29] Page 8 of the Application.
Businesses have expenses, including things like advertising, office expenses, insurance, licensing requirements, interest, etc. The figure above, which appears to be agreed by the parties, takes into account the costs associated with the specific job performed by Mr Sidrak for Ms Constantinides. I also note that it is different to the calculation set out on page 38 of the Application. It does not appear to include any of the general costs of running a business. However, in the absence of any material before me, and lacking the specific expertise to calculate those costs, I will proceed on the figure provided by the parties. As such the amount of $55,882.37 represents the “gross pre-injury earnings received by the worker for work”.
The following facts determine the relevant date on which PIAWE calculations commence pursuant to 8D of the 2016 Regulation:
(a)    Mr Sidrak left his work with Calida Projects (the employer immediately prior to the respondent on 24 September 2021. This is because he “planned to work for my own business known as Frontline Fitouts”, that had been established by Mr Sidrak’s brother;[30]
(b)    Mr Sidrak did no work for about four months, due to strict covid lockdowns;
(c)    Mr Sidrak became sole director and secretary of the respondent on 24 January 2022[31];
(d)    a contract was signed for work to be provided by the respondent to Ms Constantinides on 1 March 2022[32];
(e)    that contract was completed around 8 May 2022[33], and
(f)    Mr Sidrak did not complete another contract until his car accident on 13 August 2022, although he was working for the company by taking calls, chasing up work, posting content on social media, and providing quotes.
[30] The applicant’s statement, page 13 of the Application.
[31] ASIC historical record, page 371 of the Reply.
[32] Page 26 of the Application.
[33] Page 14 of the Application.
There are some aspects of these factual findings that give me pause; particularly in relation to (b) and (c) above. The applicant’s case is that he did no work for four months due to Covid lockdowns. It is not clear why he would cease a high-paying job to immediately earn no income. It may be that the applicant was in fact working with or for his brother prior to taking over the business on 24 January 2022. However, there is no evidence in that regard and the respondent has not addressed me in any way consistent with other than accepting the applicant’s version of events as set out.
I have been unable to determine how the applicant reached the figure of $2,102.94 provided in their submissions. A 28-week period would be $1995.79 on the amount of $55,882.37.
The applicant’s PIAWE calculation takes the start of the period as from 31 January 2022. The respondent’s counter position is from 1 January 2022.
My view is that neither date is entirely appropriate or correct. Based on the material before me, the appropriate date for when Mr Sidrak was “entitled to receive payment of earnings for work performed in the employment” was 24 January 2022, when he took over the company as director from his brother.
I would add that there is no basis to conclude that the company began trading on 1 March 2022, as asserted in correspondence to IAG[34]. Mr Sidrak signed the contract with Ms Constantinides on that date, but there was clearly work performed in the leadup to that signature, including the obvious discussions with Ms Constantinides that would have occurred prior the signing of the contract for work. That is consistent with the report of what Mr Sidrak was doing in the period following the completion of the contract with Ms Constantinides (as set out in the applicant’s statement).
[34] Page 2321 of the Application.
The period from 24 January 2022 to 13 August 2022 is 28 weeks and 5 days. The earnings figure of $55,882.37 divided by the relevant earnings period is $1946.44. That is the applicant’s PIAWE. That PIAWE figure should be indexed on the relevant occasions in accordance with the legislation.

Section 46 of the 1987 Act

The respondent relies on s 46 of the 1987 Act and makes an application that weekly benefits be reduced for the period from 13 August 2022 to 15 November 2023 on the basis that
Mr Sidrak received payments under the MAI Act in that period.
Section 46 of the 1987 Act provides:
“(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2) Any such order shall have effect according to its tenor.
(3) This section does not affect the operation of section 49 or 50.”
There are two question inherent in consideration of the application made by the respondent here. The first is whether s 46 applies at all. The second is whether, if it does, I should exercise my discretion to reduce the amount of weekly payments and in what way should I reduce it. For example:
(a)by excluding the period of entitlement for benefits under the MAI Act as payable by the employer (i.e. by reducing the obligation to nil), or
(b)by making a calculation in accordance with the amount paid as benefits under the MAI Act.
The respondent submits that the rationale of s 46 is to avoid overcompensation. The workers compensation scheme is designed to compensate workers for a loss as a result of incapacity, not to put an injured worker in a better position post injury than they would have been but for injury. The respondent submits that the benefits under the MAI Act are benefits of the same kind, being both for total incapacity for the same period. The respondent referred to Purkiss v Secretary, Department of Education[35] (Purkiss) and the cases cited therein.
[35] [2022] NSWPIC 269.
The applicant submits that s 46 requires payments to be payable by the employer. The applicant submits that Purkiss has no direct parallel here, as it involved a settlement reached in the industrial relations Commission that may have included a wages component. The applicant submits that s 46 has no work to do here.
The factual basis for the respondent’s assertion is not disputed and is underpinned by the list of payments attached to the respondent’s Application to Admit Late Documents[36]. It is not clear when exactly Mr Sidrak’s payments under the MAI Act ceased. In a letter dated 21 December 2023, there are three possible dates - on 11 February 2023 (which might be a typographical error), the date of the letter (21 December 2023) or potentially on 19 January 2024[37]. The list of payments provided in the Application to Admit Late documents shows payments until 21 January 2024 (paid date of 24 January 2024), which is largely consistent with the notice date of 19 January 2024. The total amount of wage benefits paid was $135,134.82. It is noted that the initial PAWE (using the language of the MAI Act) amount was $2,164.67.
[36] From pages 12-21.
[37] Page 64 of the Reply.
The question to be answered here is one of statutory construction. The parties have referred to a number of authorities on the point but it is clear that s 46 is somewhat ambiguous and is not often relied upon in Commission proceedings. The factual circumstances that underpin an application being made under s 46 are no doubt rare.
The provision was discussed in the Compensation Court in Miller v CSR Limited[38]. That case concerned overpayments made on a voluntary basis under the 1987 Act and not the present factual circumstances.
[38] (1993) 9 NSWCCR 121
Workers’ Compensation Dust Diseases Board of NSW v Cook[39] does not provide any assistance to the respondent. Basten JA states:
“Further, s 46 refers to “dual benefits of the same kind”, not to the payment of compensation and damages. The benefits are to be payable “by the employer”, which does not engage the present case. Nor did the submission consider the operation of Sch 6 and the benefits payable in respect of coal miners, being an important qualification to the operation of the Workers Compensation Act under s 8(2) of the Dust Diseases Act.”
[39] [2015] NSWCA 270
MacFarlan JA similarly found that the reference to dual benefits was to benefits under the 1987 Act: “Moreover, the reference to “dual benefits” is, in its context, a reference to duplicated Workers Compensation Act benefits and does not refer to common law damages.”
Roads & Traffic Authority of New South Wales v Smith & Anor[40] also involved interpretation of s 46. In that case payments were made in a settlement in the Industrial Relations Commission of NSW for “all claims the worker brought against his former employer”. Those payments were held not to be “in respect of the incapacity for work” as required by s 46.
[40] [2007] NSWWCCPD 134
The present circumstances are somewhat different. Mr Sidrak has an incapacity for work and payments were made in respect of that incapacity by NRMA under the MAI Act. The question is are they benefits “of the same kind” and do those benefits need to be payable “by the employer” or some other entity?
The answer to that question appears to be made in Cook, per Basten JA. After discussing the section itself (see [87] above) he goes on to consider the nature of the payments (in those circumstances, under the Workers’ Compensation (Dust Diseases) Act 1942:
“Of critical importance in this context is that the primary purpose of the Workers Compensation Act is to confer on a worker who has received an injury (being a personal injury arising out of or in the course of his or her employment) a right to receive compensation from the worker’s employer. The Dust Diseases Act does not provide for payments of compensation by an employer, but by the Board, albeit from a fund created under s 6 of the Dust Diseases Act which will include payments by workers’ compensation insurers.” (citations removed)
In the present case, the payments made were not by the Board but by a separate and distinct insurer, under a different scheme for compensation. It seems that those circumstances would be on all fours with that set out in Cook. Whilst the benefits in the motor accidents scheme and workers compensation scheme are of similar kinds, i.e. to provide payments of weekly compensation to an injured person for a period of incapacity, they are not “the same kind” under s 46.
I do not consider, as the applicant submits, that the relevant question is who the benefits are payable by. Given the nature of the two statutory insurance schemes, there may be circumstances where the same insurer (acting as agent for an employer) manage both a workers compensation and a CTP claim for the same incident. In my view the words “being payable by the employer” refers to the reduced payment rather than the dual benefit.
The respondent submits that s 46 should be used because otherwise the worker would be in a better position post injury have he would have been but for injury. This argument is not persuasive. The section is not one preventing a kind of unjust enrichment. It is clearly targeted at ensuring an insurer is not obligated to pay more benefits than it would be otherwise be required to pay in accordance with the legislation. This is consistent with the nature of the workers compensation scheme as a whole.
My views are further supported by the nature of the scheme under the MAI Act. Section 3.35 prevents benefits being payable if compensation under the 1987 Act would be payable:
“(1) An injured person is not entitled to statutory benefits under this Part if compensation under the Workers Compensation Act 1987 (workers compensation) is payable to the injured person in respect of the injury concerned (or would be payable if the liability for workers compensation had not been commuted).
(2) The relevant insurer for a claim for statutory benefits under this Part is not entitled to refuse payment of statutory benefits under this Part on the grounds that workers compensation is payable in respect of the injury unless—
(a) the injured person has made a successful claim for workers compensation in respect of the injury, or
(b) the injured person has failed to comply with a request by the relevant insurer under this section to make a claim for workers compensation in respect of the injury.
(3) A claim for workers compensation is considered to have been successful if liability for any workers compensation has been accepted by the insurer for the claim under the Workers Compensation Act 1987. Liability is considered to have been accepted until liability is wholly denied (and for that purpose a denial of liability does not count while it is the subject of a dispute under that Act).
(4) If the relevant insurer for a claim for statutory benefits under this Part considers on reasonable grounds that workers compensation is or may be payable in respect of the injury concerned, the insurer may require the injured person to make a claim for workers compensation in respect of the injury.
(5) Statutory benefits are not payable under this Part in respect of any matter for which workers compensation was paid before liability for workers compensation was denied.
(6) Statutory benefits are not payable under Division 3.2 (Statutory benefits for funeral expenses) if workers compensation is paid or payable in respect of the death under Division 1 of Part 3 of the Workers Compensation Act 1987.
(7) A person who makes a claim for statutory benefits under this Part and a claim for workers compensation must inform both insurers of that fact (unless the insurers would already be aware of both claims having being made). Insurers under this Act and the Workers Compensation Act 1987 may exchange information for the purposes of facilitating the proper operation of this section.
(8) Nothing in this section affects the entitlement of an injured person to statutory benefits for treatment and care under Division 3.4 in respect of an injury if compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the Workers Compensation Act 1987 previously payable in respect of the injury has ceased to be payable. The relevant insurer is not entitled to refuse payment of the statutory benefits on the grounds that workers compensation was previously payable under that Division.”
It may be that no payments were payable under the MAI Act. That is not a matter that I need to determine, but note that there already exists a specific statutory provision (in a different scheme) dealing with the circumstances faced in the present case.
Accordingly, I am not satisfied that s 46 can be exercised in the present case as the benefits Mr Sidrak was paid under the MAI Act were not “benefits of the same kind”. I will make the necessary award for weekly compensation reflecting the relevant determinations I have made above, concerning capacity and PIAWE.

[2024] NSWPIC 653

27 November 2024