Stapleton v PSGA Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stapleton v PSGA Pty Ltd [2024] NSWPIC 580
APPLICANT:	Michael Peter Stapleton
RESPONDENT:	PSGA Pty Ltd
MEMBER:	Kathryn Camp
DATE OF DECISION:	17 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 82A; date an injured worker “became entitled to weekly payments of compensation” for the purposes of variation of pre-injury average weekly earnings; statutory construction; distinction between physical incapacity and economic incapacity; Arnotts Snack Products Pty Ltd v Yacob considered and distinguished; P&O Berkley Challenge and Alfonso, Theoret v Aces Incorporated, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, Project Blue Sky Inc v Australian Broadcasting Authority, and Military Rehabilitation and Compensation Commission v May considered and applied; Held – for the purposes of section 82A an injured worker becomes entitled to weekly payments of compensation on the date of physical and economic incapacity for work; the relevant date of incapacity is the date of surgery; the applicant has no entitlement to variation of his pre-injury average weekly earnings pursuant to section 82A; respondent paid the applicant his full entitlement to weekly payments of compensation for the period claimed.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant has no entitlement to a variation of his pre-injury average weekly earnings pursuant to s 82A of the Workers Compensation Act 1987, for the period 7 June 2023 to 22 June 2023. 2. The respondent has paid the applicant his full entitlement to weekly payments of compensation, for the period 7 June 2023 to 22 June 2023, pursuant to s 36 of the Workers Compensation Act 1987. The Commission orders: 3. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns the date on which the applicant worker became entitled to weekly payments of compensation, for the purposes of indexation of the pre-injury average weekly earnings (PIAWE) under s 82A of the Workers Compensation Act 1987 (1987 Act). In particular, it concerns the application of this provision in relation to a paid closed period of weekly payments of compensation under s 36 of the 1987 Act in respect of an accepted injury sustained several years earlier.
For the reasons discussed below, the applicant’s claim for compensation is unsuccessful.

BACKGROUND

On 2 May 2018, the applicant, Mr Stapleton, sustained an umbilical hernia in the course of his employment with the respondent, PSGA Pty Ltd.
The injury caused some discomfort but the applicant continued to work in his pre-injury employment as a Physical Identity & Access Management Lead (formerly titled Project Manager) until November 2018, after which he undertook four other full-time roles. He was last employed as Regional Assurance Lead APAC from January 2022. The applicant earned an income, in the roles post injury, which was well in excess of his pre-injury average weekly earnings.
The matter was subject to previous proceedings before the Personal Injury Commission (Commission). On 12 December 2022, then Member Young issued a Certificate of Determination (W4773/22). Member Young determined that the applicant sustained an umbilical hernia in the course of his employment with the respondent on 2 May 2018 and had an entitlement to past medical expenses pursuant to s 60 of the 1987 Act. Member Young also held that the proposed hernia repair treatment was reasonably necessary as a result of the injury.
On 7 June 2023 the applicant underwent umbilical hernia surgical repair at the hand of A/Prof Fenton-Lee. The respondent paid for the surgery.
The applicant did not work between 7 June 2023 and 22 June 2023, while he recovered from the surgery.
The respondent paid the applicant weekly payments of compensation, pursuant to s 36 of the 1987 Act based on a pre-injury average weekly earnings figure of $1,200.
On 20 June 2023, the respondent insurer issued a decision which assessed the applicant’s PIAWE at $1,200.
On 12 August 2024, the applicant lodged an Application to Resolve a Dispute (Application) in respect of a dispute about his entitlement to weekly benefits.
On 30 August 2024, the respondent lodged a Reply.

UNDISPUTED FACTS

The following facts are not in dispute:
(a)    the applicant sustained an injury on 2 May 2018, in the nature of an umbilical hernia;
(b)    the applicant did not suffer any economic loss for work as a result of the injury, until he underwent umbilical hernia surgical repair on 7 June 2023;
(c)    the applicant was totally incapacitated for work from 7 June 2023 until
22 June 2023, while he was recovering from surgery;
(d)    the respondent paid for the surgery and weekly payments of compensation for the closed period, 7 June 2023 – 22 June 2023;
(e) the respondent paid the applicant weekly payments of compensation pursuant to s 36 of the 1987 Act, based on an agreed PIAWE figure of $1,200, and
(f)    the applicant had not previously been in receipt of weekly payments of compensation.

ISSUE FOR DETERMINATION

The only issue in dispute is:
(a) the quantification of the applicant’s entitlement to weekly payments of compensation for the period 7 June 2023 to 22 June 2023 (namely, whether the applicant’s PIAWE may be varied pursuant to s 82A of the 1987 Act).
The parties disagree on the date from which indexation is triggered pursuant to s 82A of the 1987 Act. The applicant asserts that his PIAWE should be indexed from the first review date after the date of (physical) incapacity, namely 2 May 2018 or in the alternative 24 July 2020. The respondent asserts that incapacity fell on and from the date of the surgery on 7 June 2023.
The applicant claims the difference between 95% of the PIAWE figure paid, namely $1,200, and the indexed figure. The applicant asserts that the indexed figure is either:
(a) $1,370 – based on PIAWE being indexed from the first review date after 2 May 2018 (the date of injury), or
(b) $1,330 – based on PIAWE being indexed from the first review date after 24 July 2020 (the date the applicant sought treatment for his injury).
There was implicit agreement between the parties that if the applicant’s entitlement to weekly compensation arose on 7 June 2023 his PIAWE would not be varied because weekly payments ceased on 22 June 2023 before the first “review date” under s 82A of the 1987 Act.
The respondent does not dispute the figures in [15(a)-(b)] above, but maintains that the applicant is not entitled to those figures. The respondent contends that it has paid the applicant’s full entitlement to weekly payments of compensation.
The amount of compensation at issue in these proceedings concerns the difference between 95% of the PIAWE figure $1,200 and PIAWE figure as indexed from a date of incapacity being 2 May 2018 or 24 July 2020, for the closed period between 7 June 2023 and
22 June 2023. This amount of compensation in issue is less than $400, in total.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 10 September 2024, the matter was listed for preliminary conference. The applicant did not attend the conference. His solicitor advised, during the preliminary conference, that the applicant could not attend due to the “nature of his employment”. The applicant’s solicitor had standing instructions to withdraw the assertion that his PIAWE should be based on his earnings post-injury in January 2022 when he worked in a different role at a significantly higher salary. In the circumstances, the matter was listed for conciliation conference and arbitration hearing on 24 September 2024.
On 24 September 2024, the parties attended a conciliation conference and arbitration hearing before me. The applicant was represented by Mr Dodd of counsel instructed by Mr McCabe, solicitor of McCabe Partners Lawyers. The respondent was represented by Mr Robison of counsel instructed by Ms Joanna Turnbull, solicitor of Hall & Wilcox Lawyers.
During the conciliation conference the respondent confirmed that it was correctly described as “PSGA Pty Ltd”.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application, dated 12 August 2024, and attached documents;
(b)    Reply to the Application, dated 30 August 2024, and attached documents, and
(c)    Direction, dated 10 September 2024.
I have closely reviewed this evidence. I will only refer to this evidence where relevant and where a party has referred to it in their submissions.

Applicant’s statement

In evidence is a statement by the applicant dated 16 October 2020. He describes that, on 2 May 2018, he was moving a printer when he felt a pulling sensation in his stomach.
The applicant states that from 2 May 2018 through to 9 May 2018 the pain in his stomach got worse. He states that he sent an email to the respondent’s Mr Cormick, Regional Security Operations and Assurance Manager, advising of the incident and that he felt like he had pulled a muscle, but that it was not overly painful just “uncomfortable”.
The applicant then states that he had a “niggling feeling in my stomach” over the next 15 months to 18 months as the hernia got bigger.
On 3 May 2020, the applicant advises Mr Cormick that he was diagnosed with an umbilical hernia. The applicant said that he advised Mr Cormick that the pain over the last year seemed to settle down and “only every now and then” that he noticed discomfort in his stomach.
The applicant states that he subsequently lodged an incident form and injury claim form.
On 24 July 2020, the applicant attended on his general practitioner Dr Baig where it was recommended that he undergo surgical management of the umbilical hernia.

Email from the applicant

In evidence is an email from the applicant to his solicitor, Mr McCabe, dated 21 June 2023. The applicant records the different roles he worked over the previous years and his salary. It is recorded that he undertook his pre-injury role until “Nov 2018”, following which he subsequently undertook four different roles each with an increase in salary from the previous role. There were no identified gaps of employment between the roles.

Medical evidence

Dr Baig

On 24 July 2020, the applicant attended on his treating general practitioner, Dr Mirza Salman Baig. Dr Baig issued a letter of referral to Dr Mario Malkoun, general surgeon, on that day, seeking an assessment and assistance with diagnosis and management of the umbilical hernia. There is no evidence from Dr Malkoun before the Commission.

Associate Professor Douglas Fenton-Lee

In evidence is a report from A/Prof Fenton-Lee, dated 10 March 2023, upper gastrointestinal and laparoscopic surgeon. He recorded that the applicant’s umbilical hernia had become larger and more uncomfortable. However, he noted that the applicant was “generally fit and well”.
In a subsequent report dated, 5 May 2023, A/Prof Fenton-Lee stated that the applicant would be able to return to pre-injury duties/suitable employment following the surgical hernia repair and a period of recovery:
“No physical activity for 2 weeks
General increase between 2-4 weeks
Full activity after 4 weeks”

Radiological evidence

On 17 June 2020, the applicant underwent an ultrasound of his abdominal wall. In the ultrasound report, it was recorded that there was a partially reducible umbilical hernia.

Dr Dixon

In evidence is a report of Dr Dixon, orthopaedic surgeon qualified by the applicant, dated 14 April 2022. Dr Dixon recorded that the applicant takes Panadol Osteo occasionally when his hernia becomes uncomfortable. He also recorded the applicant’s present symptoms, noting that the hernia becomes uncomfortable after prolonged sitting and travelling. He also recorded a walking tolerance of 30 minutes, a reasonable standing tolerance but restricted sitting tolerance.
In terms of fitness for work, Dr Dixon recorded:
“He has been able to continue his work duties, but has moved from a PIAM to becoming a regional assurance lead. He avoids heavy lifting and prolonged sitting, having frequent rest breaks due to the discomfort from the umbilical hernia.”
Dr Dixon later recorded that the applicant will be:
“restricted from employment in the foreseeable future following the umbilical hernia repair for some three months and at present is doing modified duties and is coping with those duties as he can sit, stand and move about. He has to avoid heavy lifting and anything that will strain his abdominal wall, such as heavy pushing and pulling at work which he has managed to avoid.
…
He is however, able to work full time with the above restrictions.”

SUBMISSIONS

The applicant and respondent provided written submissions. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

Mr Dodd referred to the applicant’s statement evidence, regarding the injury, symptoms and treatment. He then referred to Dr Dixon’s evidence, and, in particular, the discussion on capacity.
Mr Dodd submitted that “since May 2018 the applicant has had a physical incapacity for work”. However, the applicant has been able to obtain employment that has earned him more than he earned pre-injury, save for a period of a few weeks when he did not work because of the surgery.
Mr Dodd stated that the question before the Commission relates to s 82A of the 1987 Act. Mr Dodd briefly referred to the history of legislation regarding entitlement to compensation from “before 1932”. He said that the entitling provision for weekly payments is in s 33 (former s 9) of the 1987 Act, and that this is where the applicant’s entitlement to weekly payments is to be found. He submitted that this provision provided that if total or partial incapacity results from injury the compensation payable by the employer shall include weekly payment for the incapacity. He then said the applicant has had an entitlement to compensation ever since 2018.
Mr Dodd submitted that the calculation of the applicant’s entitlement is under s 36 of the 1987 Act, but that is not the entitlement. He further submitted that the entitlement comes from, ever since 1997, from s 33 of the 1987 Act which has remained unamended.
Mr Dodd referred to the decision in Arnotts Snack Products Pty Ltd v Yacob[1] (Yacob), in support of the question of entitlement to compensation. He said that the question in that case was whether the applicant’s incapacity for work needed to be physical or economic in nature. The High Court held that incapacity is the physical incapacity, even though it may not attract compensation as it did not result in loss of earning power.
[1] (1985) 155 CLR 171.
Mr Dodd then referred to repealed s 11(1) of 1987 Act, which required a consideration of comparable earnings. That changed in 2012 with the introduction of the concept of PIAWE and a s 82A indexation factor. He then added that the very nature of the legislation was that if you have a period of incapacity later in the piece “we’ll look at your PIAWE but your PIAWE as indexed similar to what used to occur with comparable weekly earnings”.
Mr Dodd described the terms of s 82A of the 1987 Act. He submitted that PIAWE is varied on each review date in April or October after the day on which the worker became entitled to weekly payments by indexing it or is it “stuck in stone” in figures appropriate in 2018. Mr Dodd submitted that the applicant’s entitlement has always been founded in s 33 of the 1987 Act.
Mr Dodd contended that s 82A of the 1987 Act refers to each review date after the day the applicant became entitled, which under s 33 of the 1987 Act was ever since 2 May 2018. The applicant has had “odd times even when he has actually been off [work]” but of course, he has been able to keep working. Mr Dodd conceded that he could not “point to there being an economic loss, but there’s been incapacity for work” and a need to go see the doctor in that period of time.
Following the previous submission, I sought clarification as to whether the applicant relied on 2 May 2018 as the only date he was originally incapacitated. Mr Dodd said “yes”, but that during the period there had been times when he had taken a few hours to go to see the general practitioner and has been incapacitated to the point of having to seek medical treatment. He later conceded that he “could not point to an economic loss in that period of time or an entitlement other than, say, for a few hours, which is just otiose”. The following exchange then took place:
“20:46: Member: Just to confirm, Mr Dodd. So, given what you have just said, you only seek to rely on the 2 May 2018, no other date?
20.54: Mr Dodd: That’s correct, yes.
20:54: Member: Thank you
20:57: Mr Dodd: Well, well, I would love to have a fall back position and try and say oh, no, look, you can’t do it. Then make it from 24 July 2020 but I would be just playing with words as compared with what my primary submission is and that is that he has had an entitlement, like became entitled to weekly compensation, weekly payments. That’s what the section says he has been. He has become entitled to weekly payments in respect of injury ever since 2 May 2018. And they have varied over time to the point where post surgery he was entitled to compensation at the appropriate rate under s 36…indicative of … having that entitlement over that time.
…
He could claim for that couple of hours; he didn’t. He could claim for the time he had at the ultrasound but he hasn’t. He could have claimed for the time when he saw the specialist but he hasn’t.
So…
That just points to the, in my respectful opinion, the fallacy of the respondent’s point of view, that is, that everything is set in stone as at 2018, whereas the legislation pre 2012 and post 2012 has always talked about either comparable earnings or taken the PIAWE and indexing it. And, secondly to suggest that the only relevant incapacity is because you become entitled under ss 36 and 37 as opposed to becoming entitled full stop under s 33.
…
That’s not what the legislation provides for in my submission.”
Mr Dodd concluded that the orders sought by the applicant are that he should be compensated at 95% at the “PIAWE asserted”, with the respondent to be given credit for payments already made.

Respondent’s submissions

The respondent submitted that the sole issue for determination is the point in time in which indexation is triggered under s 82A of the 1987 Act. The point in time to assess PIAWE is no longer pressed.
Mr Robison referred to the applicant’s statement of 16 October 2020. Mr Robison then referred to the applicant’s statement which notes a “niggling feeling in the stomach” which he submitted would be inconsistent with any economic consequence pertaining to the ability to work. He added that the severity of the injury was minor for the first couple of years.
Mr Robison also referred to the medical evidence. He referred to Dr Dixon’s report of
14 April 2022, and the record of treatment the applicant undertook. He then referred to A/Prof Fenton Lee’s reports dated 10 March 2023 and 5 May 2023. He submitted that the initial report noted that the applicant is generally fit and well but the hernia had become larger and is more uncomfortable. He added that there is nothing to suggest that there was incapacity at a time prior to surgery, and the subsequent report notes that incapacity is a period associated with the recovery from surgery.

Mr Robison submitted that when interpreting s 82A of the 1987 Act it is appropriate to start with the text of the legislation itself. He contended that the wording in s 82A is such that the indexation of weekly benefits is not tethered to injury or a theoretical right to claim weekly benefits. It is tethered to an “actual entitlement to weekly benefits”. That is because the variation on each review date after the day on which the worker became entitled to weekly benefits. Mr Robison submitted that there “must be an actual entitlement to weekly benefits, not an entitlement to claim weekly benefits and not simply the existence of an injury”.
Mr Robison asserted that s 82A of the 1987 Act had to be read, not so much with s 33 of the 1987 Act, which is a general statement of the right to weekly benefits, but rather with s 36 onwards which is the mechanism by which one has an actual entitlement to benefits. It is only when the requirements of those sections are satisfied that there is an entitlement to an award as opposed to there being an injury or right to make a claim. They are the relevant sections to be read with s 82A because of the reference to the phrase “entitlement to weekly payments” and there is an entitlement to weekly payments if one satisfied those sections (ss 36 and 37).
Mr Robison referred to the decision in Yacob which concerned the Workers Compensation Act 1926 (1926 Act) and submitted that a lot has changed in terms of the statutory formula for an award of weekly benefits, not so much with the inception of the 1987 Act but the 2012 amendments which brought in the PIAWE formula.
Mr Robison submitted that the weekly benefits provisions operate as a code and there is no room for restitution or any other concept of fairness that might be derived from the common law. He referred to the decision of Philpott v Australian Plays Transform.[2]
[2] [2023] NSWPICPD 21.
Mr Robison added that the weekly benefits provisions are a self-contained mechanism by which there is or is not an entitlement and also as to the quantification of that entitlement; including any indexation.
Mr Robison then referred to the decision in Yacob which was considered in P&O Berkley Challenge and Alfonso[3] (Alfonso) (cited with approval in Haddad v The GEO Group Australia Pty Ltd[4]). Mr Robison submitted that “you relate the timing of incapacity with that which is being claimed, as opposed to the injury”. He added that in order for the claim to be satisfied there must be a loss of wages.
[3] (2000) 49 NSWLR 481; [2000] NSWCA 214 (Alfonso), [37].
[4] [2024] NSWCA 135.
Mr Robison also referred to the decision in Theoret v Aces Incorporated[5] (Theoret), which he conceded was based on a different set of facts but that there were aspects of the decision which must be regarded. Mr Robison referred to the obiter commentary at [70], where Justice Garling said the relevant date for s 82A of the 1987 Act is not always the date of injury although in many cases it may well be because there is an incapacity immediately consequent upon the injury. He added that in many cases there will be an immediate incapacity as the triggering date but this may not always be and there are cases with somewhat unusual facts, such as this, where there is a fairly minor injury at the outset and its manifestation of symptoms require surgery and therefore incapacity some years later. That is the unusual case that was contemplated in Theoret, which said that there needs to be a factual determination as to the relevant date. Mr Robison added that if it was simply a matter of being the date of injury there would not need to be any other factual determination because everything would be confined to the date of injury, which it is clearly not.
[5] Theoret v Aces Incorporated [2021] NSWCA 3.
Mr Robison then referred to [71] of Theoret and submitted, it is clearly not a given that incapacity and the triggering of s 82A of the 1987 Act occur at the same time of injury. He then referred to [72] and submitted that the foundation is proof of incapacity, but incapacity of sufficient magnitude to take someone out of work.
Mr Robison later also referred to [69] in Theoret, referring to a quote in the judgment of Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW.[6] He submitted that the quote is that the entitlement to weekly payments is always dependent on there being a deficit in work capacity. He added that the incapacity arising subsequent to injury is a decisive matter and there needs to be a deficit in work capacity and an entitlement to weekly benefits which may not always occur simultaneously.
[6] [2000] NSWCA 113.
Mr Robison asserted that caution must be given to the High Court judgment in Yacob, which was dealing with a different statute and different code. He further asserted that the interpretation of the case in Alfonso is binding and submitted that there is “a conceptual disconnect between injury and incapacity, they do not arise simultaneous as a matter of legal necessity or factual necessity”.
Mr Robison submitted that the Commission must turn to basic principles of legislative interpretation, giving words their clear meaning. He added that while there are certain matters under the 1987 Act which are ambiguous and should be construed beneficially because it is a beneficial scheme, s 82A of the 1987 Act is not such a provision. He further added that Parliament could have said that indexation will apply to all workers from the date of injury but it drafted a more detailed provision that requires that there not only be an injury but for there to be an entitlement to weekly payments. Mr Robison then submitted that it is only when the weekly payments become a matter of “actual entitlement that you commence the indexation process”. And while this may seem unfair, Mr Robison submitted that the Commission cannot look to fairness or restitution to reverse the clear meaning of the section.
Mr Robison submitted that the only award to be entered is an award for the respondent and a finding that the compensation which has been paid is the extent of the applicant’s entitlement for the period. Alternatively, the respondent sought that the proceedings be dismissed.

Applicant’s submissions in reply

Mr Dodd referred to the decision in Phillcott regarding fairness and restitution, which Mr Robison initially referred. Mr Dodd submitted that that is “not the case being put today by the applicant”.
Mr Dodd submitted that he took issue with reliance on the decision of Haddad v The GEO Group Australia Pty Ltd[7] as it concerned deemed dates of injury which is different to what is discussed here.
[7] [2024] NSWCA 135.
Mr Dodd submitted that the applicant’s case is that there has been an incapacity since
May 2018. He referred to the decision in Theoret, and submitted that the question of when incapacity occurred is always a matter of determination of the Commission. Mr Dodd submitted that, consistent with the respondent’s submissions, the applicant was suffering incapacity and his condition had developed to such a profound state that he was seeking medical assistance having an ultrasound and being referred to surgery from 24 July 2020 when he consulted his general practitioner. He then submitted that “it became sufficiently profound that there was an incapacity from 24 July 2020”.

Following submissions

Following Mr Dodd’s last submission, the following exchange then took place:
“57:40: Member: Just to clarify, you now rely on indexation being triggered by two dates. Firstly, the date of injury being 2 May 2018 and then secondly, the date of a medical consultation being 24 July 2020?
57:58: Mr Dodd: that’s correct.”
I allowed the respondent to provide brief submissions in response.
Mr Robison submitted that there is no statement from the applicant dealing with what occurred in relation to the consultation on 24 July 2020, such as taking time off work. He added that there is no certificate. He further added that there is no evidence of loss of earnings consequent on that consultation, which could have occurred during annual leave or something else. The evidence is silent on that. Mr Robison submitted that this alternative case does not arise on the evidence.
Mr Dodd then submitted that the actual attendance on a doctor is not the triggering point. Rather, he submitted that he was just adopting the respondent’s submissions that the incapacity for the first 18 months or so was not so profound as to lead to any incapacity. By at least July 2020, when the applicant attended on doctors who referred him for surgery, he did have an incapacity. Mr Dodd submitted that the entitlement under s 33 of the 1987 Act, adopting the respondent’s submissions, is that his condition had by July 2020 become so profound as to lead to an incapacity. The thrust of the respondent’s submissions is that the applicant did not have such an incapacity prior to that date, but only had a niggle in his groin.
Mr Robison then clarified that he intended to submit that the applicant’s symptoms became sufficient for an award, and an entitlement to weekly benefits, on the date of surgery. That is because, so Mr Robison submitted, the applicant was able to work until he had surgery. The symptoms required treatment in the form of surgery and in the recovery from surgery there was an incapacity. He concluded that there is no date prior to that that would be sufficient on the evidence.

Applicant’s subsequent submissions

Mr Dodd referred the decision in Theoret at [69], where a quote from Hochbaum was reproduced. Mr Dodd submitted that the decision in Hochbaum concerned the whole person impairment limits. He submitted that quote provides that you can have an impairment but not an incapacity, which are different concepts. He then submitted:
“So yes, the entitlement to weekly payments is dependent upon there being a deficit in work capacity. The first thing is that a work capacity doesn't mean that there's not an incapacity for work being a physical incapacity in a Yacob v Arnotts Snack Products sense and therefore lead to an entitlement to compensation, but as rather that the incapacity you then you look at the entitlement provisions under s 36 and following in terms of how much that incapacity then sounds in weekly compensation. So they are the calculating provisions as were ss 11 and 40 in the old sections and old Act…but now in s 36 and 37.”
Mr Dodd then added that:
“the point being … not to be commenced or [sic] confused between when it refers to in s 36 regarding what your weekly entitlements are, that’s the only sort of entitlement we’re talking about. It is an entitlement because of s 33. That is the first part before you even get to s 36 and 37.”

FINDINGS AND REASONS

Relevant legislation

Section 82A of the 1987 Act provides that:
“82A   Indexation—weekly payments
(1) The amount of a weekly payment to a worker under Division 2 in respect of an injury is to be varied on each review date after the day on which the worker became entitled to weekly payments in respect of that injury, by varying the amount of the worker’s pre-injury average weekly earnings for the purposes of the calculation of the amount of the weekly payment in accordance with the formula—
where—
A is the amount of the worker’s pre-injury average weekly earnings within the meaning of Division 2 or, if that amount has been varied in accordance with this section, that amount as last so varied.
B is—
(a)  the CPI for the December quarter immediately prior to the review date when the review date is 1 April, or
(b)  the CPI for the June quarter immediately prior to the review date when the review date is 1 October.
C is—
(a)  the CPI for the June quarter immediately prior to the review date when the review date is 1 April, or
(b)  the CPI for the December quarter immediately prior to the review date when the review date is 1 October.
(2) In this section—
CPI means the consumer price index (All Groups Index) for Sydney issued by the Australian Statistician.
review date means 1 April and 1 October in each year.
(3)   (Repealed)
(4) The Authority is to declare, by order published on the NSW legislation website on or before each review date, the number that equates to the factor  for the purposes of the variation required for that review date under this section.
(5) A declaration made by an order published on the NSW legislation website after a review date for the purposes of the variation required for that review date under this section has effect as if the order were published before that review date.”
Section 33 of the 1987 Act provides that:
“33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”

Section 36 of the 1987 Act provides that:
“36   Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)  95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.”
“Current work capacity” and “no current work capacity” is defined under cl 9 of Schedule 3 of the 1987 Act as follows:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
“Suitable employment” is defined under s 32A of the 1987 Act as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”

Discussion

The ultimate question concerns the point when indexation is triggered. That is, it concerns the point when the applicant “became entitled to weekly payments” to enable the correct application (if any) of the indexation calculation in s 82A of the 1987 Act. This requires a factual determination of the relevant date of incapacity, for the purpose of the application of s 82A generally.[8]
[8] Theoret v Aces Incorporated [2021] NSWCA 3, [70]-[73] (per Garling J, McCallum JA agreeing).
The applicant’s case is that an entitlement to weekly payments of compensation is triggered from the date of physical incapacity, in the present circumstances, being the date of injury or date he sought medical treatment for the injury. The applicant’s position turns on an acceptance that s 33 of the 1987 Act provides for when a worker becomes entitled to weekly payments of compensation, and that the PIAWE figure is thereafter varied in accordance with the relevant review dates under s 82A of the 1987 Act. The applicant relies on the judgment in Yacob.
The respondent’s case is that an entitlement to weekly payments of compensation is triggered from the date of economic incapacity for work, in the present circumstances, being the date of the surgery. The respondent’s position turns on an acceptance that s 82A of the 1987 Act must be read with s 36 of the 1987 Act, and it is only when the applicant satisfies s 36 that PIAWE is thereafter varied in accordance with the relevant review dates under s 82A of the 1987 Act.
The answer to the ultimate question requires an analysis of the construction of s 82A of the 1987 Act, which is found in Division 6A - Indexation of weekly payments of Part 3 – Compensation benefits of the 1987 Act. The question of construction is to be determined by reference to the “text, context and purpose of the Act”.[9]
[9] Military Rehabilitation and Compensation Commission v May [2016] HCA 19, [10].
I must give effect to the plain terms of s 82A of the 1987 Act and construe the provision so that it is consistent with the language and purpose of the statute.[10] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[11] the plurality stated:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[12] (footnotes omitted)
[10] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, [69], [71] (per Brennan CL, McHugh, Gummow, Kirby and Hayne JJ).
[11] [2009] HCA 41; 239 CLR 27.
[12] [2009] HCA 41; 239 CLR 27, [47].
Section 82A of the 1987 Act was introduced by the Workers Compensation Legislation Amendment Act 2012 (2012 amending Act), together with several other amendments and new provisions in relation to weekly payments.
Section 82A of the 1987 Act commences with reference to “[t]he amount of a weekly payment to a worker under Division 2 in respect of an injury”. That amount is dependent on several factors and derived from a calculation under ss 36-38 of the 1987 Act, having regard to the applicant’s PIAWE. The parties did not dispute the applicant’s original PIAWE figure of $1,200.
Section 82A of the 1987 Act then provides for when a worker’s PIAWE is varied and the relevant formula to be applied. There is no apparent dispute that the amount of a weekly payment was to be varied on each “review date” as defined in s 82A. There was also no dispute as to the methodology in calculating how the PIAWE amount is to be varied, by applying the formula in s 82A. That is, there was acceptance that the amount was to be varied on 1 April and 1 October in each year after the day on which the applicant became entitled to weekly payments of compensation.

Relevantly, the parties were in agreement as to the PIAWE figures, where the PIAWE amount was varied on each review date after the following dates:
(a) 2 May 2018 (date of injury) - $1,370 (PIAWE as indexed);
(b) 24 July 2020 (date applicant sought treatment) - $1,330 (PIAWE as indexed), and
(c) 7 June 2023 - $1,200 (there was implicit agreement that PIAWE was not varied because weekly payments ceased on 22 June 2023 before a “review date” under s 82A of the 1987 Act).
However, the parties differed on when a worker became entitled to weekly payments in respect of the injury. Section 82A of the 1987 Act provides that the amount of a weekly payment “in respect of an injury is to be varied on each review date after the day on which the worker became entitled to weekly payments in respect of that injury”.
For the reasons discussed below, I accept the respondent’s submission that the applicant only became entitled to weekly payments in respect of the accepted injury after the date of economic loss for work, namely the date of surgery on 7 June 2023.

When does a worker become “entitled to weekly payments”?

The plain terms of s 82A of the 1987 Act, set out above, must be considered in relation to the context of other provisions in the 1987 Act regarding weekly payments.
Sub-Division 2 – Entitlement to weekly compensation, under Division 2 – Entitlement to weekly compensation in Part 3 – Compensation Benefits of the 1987 Act, contains provisions relevant to a worker’s “entitlement” to weekly payments of compensation (ss 33-42 of the 1987 Act).
Section 33 of the 1987 Act provides that if injury results in total or partial incapacity for work the compensation payable to the injured worker “shall include a weekly payment during the incapacity”. The quantum of that “weekly payment” is determined by reference to ss 36-38 of the 1987 Act. Section 36 of the 1987 Act is the relevant operative provision for the quantification of that weekly payment in the present circumstances, as the applicant’s claim for weekly payments of compensation concerns the first entitlement period (namely, the first two weeks and one day).
Section 36 of the 1987 Act provides for weekly payments of compensation to an injured worker during the “first entitlement” period of 13 weeks, according to whether the worker has “no current work capacity” or has “current work capacity”. In the first entitlement period, for a period of no current work capacity, a worker is entitled to 95% of the average weekly earnings. The phrases “current work capacity” and “no current work capacity” are defined under cl 9 of Schedule 3 of the 1987 Act. It is accepted that the applicant had no current work capacity for the relevant closed period of weekly payments of compensation paid, namely the period the applicant was recovering from surgery.
An injured worker’s right to claim compensation may vest from the date of injury. Similarly, an injured worker’s right to claim weekly payments may vest from the date of an incapacity. However, for the reasons that follow, this does not necessarily mean the worker has an “entitlement” to weekly payments of compensation (or “became entitled to weekly payments”) for the purposes of s 82A of the 1987 Act at the point in time those rights vested.
Firstly, the language in s 82A of the 1987 Act refers to the day on which the worker “became entitled to weekly payments”. Sections 36-38 of the 1987 Act provide for weekly payments during “first entitlement period”, the “second entitlement period”, and “after the second entitlement period”. Section 82A adopts the language of “entitlement” as found in ss 36-38. These operative sections must be read with s 82A, to give effect to the purpose of the plain words of that provision. Reading these provisions together, it is only when an injured worker satisfies the conditions in ss 36-38 that they have an entitlement (or became “entitled”) to weekly payments for the purpose of s 82A.
While s 33 of the 1987 Act provides that where there is an incapacity for work the compensation payable “shall include a weekly payment during the incapacity”, this provision operates no more than to vest an employer’s liability for compensation and an injured worker’s right to claim compensation from the date of an incapacity. Section 33 does not refer to the term “entitlement” to weekly payments or use similar language. It does not explain what weekly payments of compensation may comprise of or how the amount of weekly payments of compensation is to be calculated. Section 33 must be read with ss 36-38 of the 1987 Act. A worker is only entitled to compensation, if having received an injury within the meaning of s 4 and there is an incapacity, to the extent it is provided for or determined under ss 36, 37 or 38.[13]
[13] Meat Carter Pty Ltd v Melides [2020] NSWCA 307, [46] (per White JA, Macfarlan JA and Gleeson JA agreeing); Hee v State Transit Authority of New South Wales (2019) 100 NSWLR 274; [2019] NSWCA 175, [9] (per Meagher JA), [49] (White JA).
Indeed, s 33 of the 1987 Act provides that the compensation payable for total or partial incapacity shall include a “weekly payment during the incapacity”. It is difficult to reconcile, on the applicant’s submission, how he could have an entitlement to weekly payments of compensation before “the [actual period of] incapacity” for which weekly payments was claimed and paid. Similarly, how the applicant could have an incapacity for work (under the current weekly payments regime) at the date of injury (or otherwise) but not have a “weekly payment during the incapacity”. An acceptance of the applicant’s submission would require the term “incapacity” in the phrase “weekly payment during the incapacity” to cover a period for which there was no claim for weekly payments of compensation and no weekly payment made. The applicant has not made a claim for weekly payments of compensation for the period prior to the surgery, and this is understandable because there has been no economic incapacity for which a weekly payment may be made.
Secondly, I do not accept that the judgment in Yacob advances the applicant’s case. I do not accept that the decision in Yacob may be applied to support a proposition that the applicant became entitled to weekly payments of compensation for the purposes of s 82A of the 1987 Act from the date of physical incapacity.
The decision in Yacob provides a distinction between physical incapacity and economic incapacity for work. The High Court held that “total or partial incapacity for work” meant a worker had a physical incapacity for actually doing work in the open labour market in which the worker was working or might reasonably be expected to work. The Court provided that under s 11(1) of the 1926 Act (a provision which dealt with the method of calculating weekly benefits) an “entitlement to compensation will depend on [an injured worker’s] loss of earning power”.[14] This conclusion, the Court held, flowed “not from the concept of partial incapacity for work, but from the nature of the express limitation which the subsection places on the amount of compensation payable”.[15] It was only when dealing with former s 11(2) (a provision which deemed total incapacity where suitable employment could not be provided by the employer) that the Court contemplated a situation where an injured worker could be in receipt of weekly benefits for total incapacity, where the employer could not offer suitable employment to an injured employee who was suffering only from a partial incapacity for work (and had an “actual economic loss”).[16]
[14] Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, [13] (per Mason, Wilson, Deane and Dawson JJ).
[15] Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, [13] (per Mason, Wilson, Deane and Dawson JJ).
[16] Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, [13] (per Mason, Wilson, Deane and Dawson JJ).
The High Court in Yacob considered notions of actual economic loss. It also provided for an apparent distinction between the date of incapacity for which weekly compensation is due and a liability in respect of the injury. The Court of Appeal in Alfonso explained:
“In Arnotts Snack Products Pty Ltd v Yacob, [7]; see also Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222, the High Court held that incapacity was established for the purpose of the Workers’ Compensation Act 1926, and in particular s 11 of that Act, if a worker’s capacity for doing work in the labour market in which the worker was working or might reasonably be expected to work was impaired by injury. Although a loss of earning power had to be established to entitle a worker to compensation for incapacity, lost earning power was not part of the statutory concept of incapacity.”[17] (footnotes omitted)
[17] P&O Berkley Challenge and Alfonso (2000) 49 NSWLR 481; [2000] NSWCA 214, [45] (per Fitzgerald JA).
The respondent sought to distinguish Yacob from the present matter on the basis that the legislation had changed. I agree that the legislation under consideration in Yacob changed significantly with the introduction of the 2012 amending Act, save for the terms of s 33 (cf former s 9(1)). However, I note that the Court did not discuss former s 9 of the 1926 Act. It considered the application of s 11 of the 1926 Act. In any event, the current legislation, applicable to the applicant provides a completely different regime for weekly payments to that which was under consideration in Yacob. There are no present provisions which deem total incapacity and an injured worker must satisfy concepts of “current work capacity” and “no current work capacity” (and the criteria in ss 36-38) before he or she may become entitled to a weekly payment of compensation.
Notwithstanding the above, applying the decision in Yacob in the manner asserted by the applicant does not assist. That is because the evidence is that the applicant did not have a physical incapacity for his pre-injury work or on the “labour market” on the dates relied on. The applicant only relied on two dates of physical incapacity, namely, 2 May 2018 (the date of injury) and 24 July 2020 (the date “treatment” was sought for the injury).
The undisputed evidence is that the applicant had some discomfort from the injury in 2018 and by July 2020 it caused him to seek treatment. The extent of that physical incapacity for work is unclear, until Dr Dixon provides his report on 14 April 2022. In that report, Dr Dixon clearly identifies that the applicant had physical restrictions as a result of the injury and was “doing modified duties” at the time of the report; notwithstanding the fact that he was able to undertake his then full-time role. However, Dr Dixon later stated that the applicant’s incapacity for work is linked to the “umbilical hernia repair” which he said would give rise to a restriction from employment for “some three months”. There is no further evidence on capacity until A/Prof Fenton-Lee’s report in March 2023, where it is recorded that the applicant is “generally fit and well”, until the applicant undergoes surgery in June 2023.
Indeed, the evidence indicates that the applicant continued to work in his pre-injury role for at least six months after the date of injury (until November 2018). The applicant did not take me to any evidence to indicate that he was undertaking suitable duties or had any physical restrictions for his work over that period of six months. Nor did the applicant take me to any evidence that indicated that he had a physical incapacity for work on 24 July 2020. The evidence is that the applicant attended his general practitioner Dr Baig and was referred to Dr Malkoun, general surgeon, for assistance with diagnosis and management of the umbilical hernia on 24 July 2020. There is no evidence of any physical incapacity for work at that point in time. On the applicant’s own account, in May 2020, it was only every now and then that he noticed discomfort in his stomach.
Thirdly, that an injury causes a physical incapacity does not mean that the injured worker becomes entitled to a weekly payment of compensation. An injured worker may have different dates of incapacity. The date of incapacity may not always coincide with the date of injury or the date the injured worker became entitled to weekly payments of compensation. Similarly, the relevant date for indexation to be triggered under s 82A is not always the date of injury but the date of capacity for which the injured worker becomes entitled to weekly payments of compensation.[18]
[18] Theoret v Aces Incorporated [2021] NSWCA 3, [65], [70] (distinguishing Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318).
While the judgment in Theoret proceeded on a basis of whether the 2012 amendments were retrospective, it provides compelling and relevant obiter commentary on the application and interpretation of s 82A of the 1987 Act. It contemplated a situation where an applicant’s incapacity may not be found until years after the date of injury. Justice Garling considered the terms of s 33 of the 1987 Act and said:
“[68] As can be seen, s 33 requires the existence of an incapacity for work before the employer is obliged to pay (and the worker is entitled to receive) a weekly payment of compensation. An injury may, or may not, give rise to an incapacity for work at the time, or on the day, when it occurs. The essence of s 33 is that weekly payments are made if, and when, there is an incapacity for work, not just because an injury or a permanent impairment has occurred.
[69] This approach accords with the judgment of Brereton JA (with whom White JA generally agreed) in Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 at [64], where His Honour said:
‘In other words, entitlement to weekly payments is always dependent on there being a deficit in work capacity. Impairment and incapacity are different concepts. Impairment does not necessarily equate to incapacity, and absent incapacity there is no entitlement to weekly payments.’
[70] As the relevant date for s 82A is not always the date of injury, although in many cases it may well be because there is an incapacity immediately consequent upon the injury, a factual determination needs to be made of the relevant date so as to enable the correct application of the indexation calculation in s 82A.”
The date of incapacity for work must be related to the relevant claim for compensation.[19] While dealing with deemed dates of injury in a disease case in a claim for lump sum compensation, Justice Hodgson’s comments in Stone v Stannard Brothers Launch Services Pty Ltd[20] regarding incapacity giving rise to an entitlement to weekly compensation are relevant. Justice Hodgson referred to the decision in Alfonso which considered the decision in Yacob and said:
“Berkeley Challenge [Alfonso] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the [Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171] sense, not resulting in any loss of wages.” [21]
[19] P&O Berkley Challenge and Alfonso (2000) 49 NSWLR 481; [2000] NSWCA 214; Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135.
[20] [2004] NSWCA 277, [36] (Mason P agreeing); cited in Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135, [111].
[21] Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277, [37] (Mason P agreeing); cited with apparent approval in Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135, [111].
That judgment made clear that incapacity giving rise to an entitlement to weekly payments of compensation occurs when the physical incapacity results in some economic loss for work. The applicant conceded that there was no economic loss for work until the date of surgery. The evidence indicates that the applicant was working in his pre-injury employment until November 2018 and thereafter in full-time employment earning well in excess of his PIAWE. The only exception is for the closed period between 7 June 2023 until 22 June 2023, where it is accepted the applicant was totally incapacitated while he recovered from surgery.
Fourthly, the parties did not directly provide submissions on the purpose of s 82A of the 1987 Act. Although it is relatively clear that the purpose of s 82A is to provide for indexation of an injured worker’s PIAWE to align with the general Consumer Price Index, which is to be applied after the relevant “review dates” after the injured worker becomes entitled to weekly payments. I am not assisted by the Second Reading Speech to the 2012 amendments, other than that it made clear that the intention of the amending act was to adopt a model of calculating an injured worker’s PIAWE by basing the calculation on the average weekly earnings of the worker, rather than the previous method.
The parties discussed the history of the workers compensation legislation and weekly payments provisions. In this regard, I note that the Workers Compensation legislation underwent significant amendment with the introduction of the 2012 amending Act. These amendments included changes to the process for determining the quantum of weekly payments of compensation, including the introduction of new concepts such as entitlement periods, PIAWE, suitable employment, and current work capacity. Further amendments to the weekly payment provisions were introduced following the Workers Compensation Amendment Act 2015 and the Workers Compensation Legislation Amendment Act 2018. While this history is important, it must not detract from the plain terms of the weekly compensation provisions under which the applicant’s case relates.
To the extent that the applicant sought to rely on the former legislation which provided that weekly payments of compensation were based, amongst other things, on comparable weekly earnings and that weekly payments would need to be adjusted to keep with economic standards, to support his interpretation of s 82A and that indexation should occur from the date of injury, it cannot be accepted. The legislation has changed. The regime for weekly payments has changed, including the removal of old concepts of “comparable weekly earnings” in place of PIAWE.
While the method of indexation provided by the legislation has not significantly changed, the content of the provision which provides for indexation has been amended.[22] Former s 80 of the 1987 Act provided for adjustment of amounts of benefits according to the award rate of pay index. Unlike s 82A of the 1987 Act, former s 80 did not provide for the adjustment (or variation) to be made on the adjustment (or review) date after the day on which the worker became entitled to weekly payments in respect of that injury. The application of s 82A must give effect to the plain terms in that provision. It must also be considered against the plain terms of Division 2 – Weekly compensation by way of income support. Those terms have been explained above.
[22] See repealed s 80 of the 1987 Act.
Fifthly, I accept the respondent’s submission that caution must be given to concepts of fairness, restitution and beneficial legislation, where it would displace the pain meaning of the terms of s 82A of the 1987 Act.[23] I also note that the applicant confirmed, in his submissions in reply, that his case was not based on principles of fairness or restitution.
[23] ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1, [29].
Lastly, it was not the applicant’s case that he had an entitlement to weekly payments of compensation where that entitlement amounted to zero.[24] Rather, that the entitlement vested at the time of a physical incapacity in the Yacob sense. I do not accept that submission for the reasons stated above.
[24] Cf Hee v State Transit Authority of New South Wales [2019] NSWCA 175.

To the extent necessary, I consider that the decision in Hee v State Transit Authority of New South Wales[25] distinguishable from the present matter. That decision concerned the application of s 38A of the 1987 Act, and, in particular s 37(2) of the 1987 Act, in circumstances where the applicant was previously in receipt of weekly payments of compensation but that compensation ceased on his return to work. The Court of Appeal held that s 38A only applied where there was an entitlement to an amount of weekly compensation determined in accordance with ss 36, 37 or 38 of the 1987 Act, even though that amount could be zero. The present matter concerns a different set of facts and the application of different provisions, namely s 82A of the 1987 Act.
[25] [2019] NSWCA 175.
Having regard to the text, context and purpose of s 82A of the 1987 Act, I consider that the applicant became entitled to weekly payments of compensation when he suffered a physical and economic incapacity for work. This finding is not inconsistent with the principles in Yacob. While this may not be the intention of the legislator in drafting s 82A, it is the consequence of the plain terms of what is enacted.

SUMMARY

An injured worker becomes “entitled to weekly payments of compensation”, within the meaning of that phrase in s 82A of the 1987 Act, on the date of physical and economic incapacity for work. In the circumstances of this case, the relevant date of incapacity is the date of surgery on 7 June 2023.
The applicant has been paid weekly payments of compensation for the closed period of incapacity claimed, pursuant to s 36 of the 1987 Act. The “review date” for the purposes of varying the amount of the applicant’s PIAWE, pursuant to s 82A of the 1987 Act, did not fall during that period. It follows that the applicant has been paid his full entitlement to weekly compensation for that period.
Accordingly, there is an award for the respondent.

[2024] NSWPIC 580

17 October 2024