Stephens v Victorian WorkCover Authority

In the case of Stephens v Victorian WorkCover Authority, the dispute arose from a claim for compensation under the WorkCover Act. The plaintiff, a sub-contractor, sustained a serious injury to his right shoulder. While the pain and suffering aspects of the injury were conceded, the central issue was the determination of the plaintiff's loss of earning capacity following the injury. This required an assessment of the number of hours the plaintiff could work without injury versus after the injury, considering his hourly rate and business expenses.

The court was tasked with interpreting the statutory provisions to determine the plaintiff's loss of earning capacity. Specifically, it needed to ascertain whether the employment the plaintiff secured post-injury should be classified as "protected employment" and how this classification affects the assessment of his loss of earning capacity. The definition of "protected employment" under the Act was central to this inquiry.

The court held that the plaintiff's post-injury employment should be considered protected employment. This classification meant that the plaintiff's earning capacity was assessed based on his ability to work without injury, disregarding the reduced hours he could work after the injury. The court found that the plaintiff's earning capacity was diminished, but not to the extent he claimed. The court's decision was based on a detailed analysis of the plaintiff's pre- and post-injury work hours, hourly rate, and business expenses.

The final orders included a determination of the plaintiff's loss of earning capacity, adjusted for the protected employment status, and a corresponding award of compensation. The court's decision provided clarity on the application of the statutory provisions in similar cases, ensuring that the assessment of loss of earning capacity is aligned with the legislative intent.