State of New South Wales (Hunter New England Local Health District) v Sternbeck (No 4)

In the case of State of New South Wales (Hunter New England Local Health District) v Sternbeck, the dispute before the court involved the calculation of 'pre-injury average weekly earnings' in a workers' compensation claim. The matter was heard in the Industrial Division of the NSW Civil and Administrative Tribunal. The central issue was whether the period during which the worker was receiving weekly compensation payments due to an earlier injury should be considered as 'unpaid leave' under regulation 8E of the Workers Compensation Regulation 2016. This determination was crucial for calculating the worker's pre-injury average weekly earnings, which in turn affects the amount of compensation payable.

The court had to decide whether regulation 8E, which allows for an adjustment to the relevant earning period to account for periods of unpaid leave, could be interpreted to include periods during which the worker was receiving compensation payments due to an earlier injury. The court examined the relevant legislative framework, including regulations 8A to 8EA, and the provisions of the Workers Compensation Act 1987. It was necessary to determine whether the statutory language permitted such an interpretation and whether it was consistent with the overall scheme of the workers' compensation legislation. The decision in Secretary, Department of Communities and Justice v Stewart, which was considered and applied by the court, provided guidance on the proper approach to the construction of regulation 8E.

The court found that the statutory provisions and regulations did not explicitly address the situation where a worker suffers two incapacitating injuries at different times. While the court recognised the importance of 'pre-injury average weekly earnings' in the workers' compensation regime, it concluded that the regulations were not intended to accommodate such specific circumstances. The court held that the period during which the worker was receiving compensation payments for the earlier injury should not be considered as 'unpaid leave' under regulation 8E. The decision was influenced by the broader scheme of the workers' compensation legislation and the principle that a construction which results in a coherent scheme should be preferred, unless it strains the statutory language to accommodate circumstances not explicitly addressed.

As a result, the court ruled that the period during which the worker was receiving compensation payments for the earlier injury should not be included in the calculation of 'pre-injury average weekly earnings'. The tribunal made orders consistent with this finding, which effectively determined the amount of compensation payable to the worker.