Stewart v Catholic Schools Maitland and Newcastle Dicoese

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stewart v Catholic Schools Maitland and Newcastle Dicoese [2024] NSWPIC 654
APPLICANT:	Joseph Stewart
RESPONDENT:	Catholic Schools Maitland and Newcastle Diocese
MEMBER:	Mitchell Strachan
DATE OF DECISION:	28 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 37; entitlements during second entitlement period; Held – applicant entitled to weekly compensation and medical expenses.
DETERMINATIONS MADE:	The Personal Injury Commission determines: Findings 1. The applicant suffered a recurrence of his lumbar spine injury of 23 November 2020 on 30 December 2021. 2. As a result of the injury on 23 November 2020, the applicant has been partially or totally unfit for work from 30 December 2021 and is entitled to payments of weekly compensation in accordance with s 37 of the Workers Compensation Act 1987. Orders 3. The respondent is to pay the applicant weekly compensation in accordance with s 37 of the Workers Compensation Act 1987 as follows: (a) from 3 January 2022 to 9 January 2022 at the rate of $1,640 per week; (b) from 10 January 2022 to 16 January 2022 at the rate of $1,640 per week; (c) from 17 January 2022 to 23 January 2022 at the rate of $1,640 per week; (d) from 24 January 2022 to 30 January 2022 at the rate of $44 per week; (e) from 20 June 2022 to 3 July 2022 at the rate of $577.61 per week; (f) from 4 July 2022 to 17 July 2022 at the rate of $1,169.57 per week; (g) from 18 July 2022 to 31 July 2022 at the rate of $353.95 per week; (h) from 1 August 2022 to 14 August 2022 at the rate of $333.95 per week; (i) from 15 August 2022 to 25 September 2022 at the rate of $149.65 per week; (j) from 26 September 2022 to 2 October 2022 at the rate of $353.63 per week; (k) from 3 October 2022 to 9 October 2022 at the rate of $420.13 per week; (l) from 10 October 2022 to 23 October 2022 at the rate of $395.65 per; (m) from 24 October 2022 to 6 November 2022 at the rate of $602.70 per week; (n) from 7 November 2022 to 20 November 2022 at the rate of $395.65 per week; (o) from 21 November 2022 to 4 December 2022 at the rate of $809.74 per week; (p) from 5 December 2022 to 18 December 2022 at the rate of $395.65 per week; (q) from 19 December 2022 to 1 January 2023 at the rate of $1,016.79 per week; (r) from 2 January 2023 to 15 January 2023 at the rate of $395.65 per week; (s) from 16 January 2023 to 29 January 2023 at the rate of $395.65 per week; (t) from 30 January 2023 to 12 February 2023 at the rate of $188.61 per week; (u) from 13 February 2023 to 26 February 2023 at the rate of $395.65 per week; (v) from 27 February 2023 to 12 March 2023 at the rate of $188.61 per week; (w) from 13 March 2023 to 2 April 2023 at the rate of $1,728 per week; (x) from 3 April 2023 to 4 June 2023 at the rate of $1,800 per week; (y) from 5 June 2023 to 18 June 2023 at the rate of $1,178.72 per week; (z) from 19 June 2023 to 2 July 2023 at the rate of $1,592.96 per week; (aa) from 3 July 2023 to 1 October 2023 at the rate of $1,800 per week; (bb) from 2 October 2023 to 19 November 2023 at the rate of $1,840 per week; (cc) from 20 November 2023 to 3 December 2023 at the rate of $1,124.91 per week; (dd) from 4 December 2023 to 17 December 2023 at the rate of $64.81 per week; (ee) from 18 December 2023 to 31 December 2023 at the rate of $1,124.91 per week; (ff) from 1 January 2024 to 28 January 2024 at the rate of $276.83 per week; (gg) from 29 January 2024 to 11 February 2024 at the rate of $912.89 per week; (hh) from 12 February 2024 to 25 February 2024 at the rate of $1,309.06 per week; (ii) from 26 February 2024 to 10 March 2024 at the rate of $799.91 per week; (jj) from 11 March 2024 to 31 March 2024 at the rate of $1,840.00 per week; (kk) from 1 April 2024 to 7 April 2024 at the rate of $1,872.00 per week; (ll) from 8 April 2024 to 21 April 2024 at the rate of $811.91 per week, and (mm) from 22 April 2024 to 30 June 2024 at the rate of $1,872.00 per week. 4. The respondent is to have credit for past sick leave payments in the sum of $64,283.29. 5. The respondent to pay the applicant’s treatment and related expenses in accordance with s 60 of the Workers Compensation Act 1987. 6. The parties have liberty to apply for seven days with respect to the above orders.

STATEMENT OF REASONS

BACKGROUND

The applicant is employed by the respondent as an IT Field Support Administrator.
On 23 November 2020 the applicant sustained an injury to his lower back in the course of his employment with the respondent while installing IT infrastructure. The applicant made a claim for workers compensation benefits at that time and the claim was accepted by the respondent’s insurer.
The applicant subsequently returned to pre-injury duties with the respondent however continued to have monthly physiotherapy and remedial massage.
The relationship between the further back pain and the original injury and employment was disputed by the respondent’s insurer and liability for weekly compensation and medical expenses was declined.
The applicant commenced proceedings in the Personal Injury Commission (Commission) for weekly compensation from 3 January 2022 to date and continuing (but only pursuant to
s 37 of the Workers Compensation Act 1987 (1987 Act) and medical expenses.
It is now accepted, that on or about 30 December 2021, the applicant developed acute back pain while undertaking back exercises prescribed by his treatment providers and the injury dispute has been withdrawn by the respondent.
However, the parties have been unable to agree on the applicant’s entitlement to weekly compensation which remains the sole issue for determination.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Applicant’s entitlement to weekly compensation pursuant to s 37 of the 1987 Act from 3 January 2022 to date and continuing.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing on
24 September 2024 by MS Teams. The applicant was in attendance represented by
Ms Compton of counsel instructed by Ms Kava of New Law. The respondent was represented by Mr Jones of counsel instructed by Mr Van der Hout of BBW Lawyers. A representative of the respondent’s insurer was also in attendance.
There was an extensive conciliation process and a number of procedural and interlocutory issues including an applicant to amend the claim by the applicant and an application to rely on further evidence by the respondent.
The respondent made an application to rely on a report of Dr Harrington. The report was not the subject of an application to admit late documents filed with the Commission. I rejected this application to rely on the report. A recording of my reasons is available to the parties. I do not consider it necessary for further reasons to be provided.
As such, it was not possible to hear oral submissions and a direction for written submissions was made.
The application to amend the claim by the applicant was to be the subject of written submissions however this was not pressed in the applicant’s written submissions.
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 to Resolve a Dispute and attached documents;
(b)    Reply and attachments;
(c)    Application to Admit Late documents filed by the applicant dated 2 September 2024, and
(d)    Application to Admit Late documents filed by the respondent dated 25 September 2024.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

The sole issue for determination is the applicant’s entitlement to weekly compensation.
In accordance with my direction the parties filed the following written submissions which have been considered:
(a)    Applicant’s submissions dated 10 October 2024;
(b)    Respondent’s submissions dated 5 November 2024, and
(c)    Applicant’s submissionsin reply dated 13 November 2024
The submissions were accompanied by summaries, schedules and tables. The schedules provided and the concessions appropriately made in submissions with respect to agreed issues are of great assistance and entirely consistent with the objects Personal Injury Commission Act 2020.
I have referred to the submissions of each party as relevant to each period for which weekly compensation is claimed in my consideration below but firstly it is convenient to set out the general basis for the claim and the relevant concessions and agreements.
The applicant makes a claim for weekly compensation from 3 January 2022 to date and continuing pursuant only to s 37 of the Workers Compensation Act 1987 (the 1987 Act).
The operation and construction of s 37 of the 1987 Act is not in dispute.
The applicant acknowledges that within the period he claims compensation his earnings exceeded his pre-injury average weekly earnings (PIAWE) and for those periods he had no entitlement to weekly compensation.
The applicant further acknowledges that prior to 3 January 2022 he had received a total of 14 weeks of weekly compensation pursuant to ss 36 and 37 of the 1987 Act and thus has a further 116 weeks remaining in his second entitlement period.
The applicant submits that where, during the period, he was either totally or partially unfit for work, he has an entitlement to compensation in accordance with s 37 of the 1987 Act.
The applicant submits that the respondent is entitled to a credit for periods where the applicant has been in receipt of sick leave payments. This does not extend however to periods where the applicant was on annual or other leave and during these periods he is entitled to weekly compensation benefits in addition to those leave entitlements.
The parties agreed in submission that the value of the credit the respondent is entitled to for past sick leave payments in the sum of $64,283.29.
The applicant’s PIAWE and the relevant indexation has been agreed and the respondent’s schedule adopts the applicant’s schedule in this regard.
The respondent also accepts the applicant’s summary of certificates of capacity.
As such, there is no significant factual dispute between the parties.
The applicant makes a claim for weekly compensation pursuant to s 37 of the 1987 Act only from 3 January 2022 to date and continuing.
The applicant’s own submissions however concede that as the claim is only made for the second entitlement period under s 37, then it cannot exceed 116 weeks (where 14 weeks have already been paid).
The respondent’s schedule does not challenge the applicant’s claim for the period
3 January 2022 to 16 January 2022. As there is no dispute, I make the following findings for this period:
(a) from 3 January 2022 to 9 January 2022 the applicant is entitled to $1,640 per week pursuant to s 67 of the 1987 Act, and
(b) from 10 January 2022 to 16 January 2022 the applicant is entitled to $1,640 per week.
From 17 January 2022 to 23 January 2022, the respondent concedes (in calculating the entitlement for the next week included in the same payslip), that the applicant was totally unfit for work. It follows that he therefore has an entitlement to compensation for this week. I make the following finding for this period:
(a) from 17 January 2022 to 23 January 2022 the applicant is entitled to $1,640 per week to s 37 of the 1987 Act.
The respondent concedes and the applicant accepts in submissions in reply that the applicant had an entitlement to weekly compensation from 24 January 2022 to
30 January 2022. On this basis I make the following finding:
(a) from 24 January 2022 to 30 January 2022 the applicant is entitled to $44 pursuant to s 37 of the 1987 Act.
The applicant’s schedule concedes that from 31 January 2022 to 19 June 2022 he was either partially incapacitated but earning more than the s 37 rate or he makes no claim for weekly compensation. This is consistent with certificates of capacity certifying the applicant fit for full hours during these periods. The respondent does not contest these parts of the applicant’s schedule. On this basis, I make the following finding:
(a) from 31 January 2022 to 6 March 2022 the applicant’s actual earnings exceeded the s 37 rate and he has no entitlement to compensation pursuant to s 37 of the 1987 Act during this period, and
(b) from 7 March 2022 to 19 June 2022 the applicant makes not claim for weekly compensation benefits.
The respondent’s schedule does not challenge the applicant’s claim for the period
20 June 2022 to 17 July 2022. As there is no dispute, I make the following findings for this period:
(a) from 20 June 2022 to 3 July 2022 the applicant is entitled to $577.61 per week pursuant to s 37 of the 1987 Act, and
(b) from 4 July 2022 to 17 July 2022 the applicant is entitled to $1,169.57 per week pursuant to s 37 of the 1987 Act.
From 18 July 2022 to 31 July 2022 the applicant’s schedule claims $353.95 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $149.64 per week.
The applicant in reply submits that the payslip for the period 15 August 2022 to
28 August 2022 amends the payments made in the period 18 July 2022 to 31 July 2022 by reducing normal hours by 7.6 hours and increasing personal leave by 7.6 hours. This is consistent with the evidence of the applicant that he was working four days per week and taking personal leave for the remaining day each week. For these reasons I accept the applicant’s schedule with respect to this period and make the following findings:
(a) from 18 July 2022 to 31 July 2022 the applicant is entitled to $353.95 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
1 August 2022 to 23 October 2022. As there is no dispute, I make the following findings for this period:
(a) from 1 August 2022 to 14 August 2022 the applicant is entitled to $333.95 per week pursuant to s 37 of the 1987 Act;
(b) from 15 August 2022 to 25 September 2022 the applicant is entitled to $149.65 per week pursuant to s 37 of the 1987 Act;
(c) from 26 September 2022 to 2 October 2022 the applicant is entitled to $353.63 per week pursuant to s 37 of the 1987 Act;
(d) from 3 October 2022 to 9 October 2022 the applicant is entitled to $420.13 per week pursuant to s 37 of the 1987 Act, and
(e) from 10 October 2022 to 23 October 2022 the applicant is entitled to $395.65 per week pursuant to s 37 of the 1987 Act.
From 24 October 2022 to 6 November 2022 the applicant’s schedule claims $602.70 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $420.13 per week.
The applicant in reply submits that the payslip for the period 30 January 2023 to 12 February 2023 amends the payments made in the period 24 October 2022 to 6 November 2022 by reducing normal hours by 7.6 hours and increasing personal leave by 7.6 hours. This is borne out on the face of the payslip and is consistent with the evidence of the applicant that he was working four days per week and taking personal leave for the remaining day each week. For these reasons I accept the applicant’s schedule with respect to this period and make the following findings:
(a) from 24 October 2022 to 6 November 2022 the applicant is entitled to $602.70 per week pursuant to s 37 of the 1987 Act.
From 7 November 2022 to 20 November 2022 the applicant’s schedule claims $395.65 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $216.45 per week.
The applicant in reply submits that the payslip for the period 30 January 2023 to 12 February 2023 amends the payments made in the period 7 November 2022 to 20 November 2022 by reducing normal hours by 7.6 hours and increasing personal leave by 7.6 hours. This is borne out on the face of the payslip and is consistent with the evidence of the applicant that he was working four days per week and taking personal leave for the remaining day each week. For these reasons I accept the applicant’s schedule with respect to this period and make the following findings:
(a) from 7 November 2022 to 20 November 2022 the applicant is entitled to $395.65 per week pursuant to s 37 of the 1987 Act.
From 21 November 2022 to 4 December 2022 the applicant’s schedule claims $809.74 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $624.11 per week.
The applicant in reply submits that the payslip for the period 30 January 2023 to
12 February 2023 amends the payments made in the period 21 November 2022 to
4 December 2022 by reducing normal hours by 7.6 hours and increasing personal leave by 7.6 hours. This is borne out on the face of the payslip and is consistent with the evidence of the applicant that he was working four days per week and taking personal leave for the remaining day each week. For these reasons I accept the applicant’s schedule with respect to this period and make the following findings:
(a) from 21 November 2022 to 4 December 2022 the applicant is entitled to $809.74 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
5 December 2022 to 18 December 2022. As there is no dispute, I make the following findings for this period:
(a) from 5 December 2022 to 18 December 2022 the applicant is entitled to $395.65 per week pursuant to s 37 of the 1987 Act.
From 19 December 2022 to 1 January 2023 the applicant’s schedule claims $1430.87 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $1,016.79 per week. The applicant adopts the respondent’s figure in his submissions in reply. As there is no dispute once the submissions in reply are considered, I make the following findings for this period:
(a) from 19 December 2022 to 1 January 2023 the applicant is entitled to $1,016.79 per week pursuant to s 37 of the 1987 Act.
From 2 January 2023 to 15 January 2023 the applicant’s schedule claims $395.65 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $186.61 per week.
The applicant in reply submits that the payslip for the period 30 January 2023 to
12 February 2023 amends the payments made in the period 2 January 2023 to
15 January 2023 by reducing normal hours by 7.6 hours and increasing personal leave by 7.6 hours. This is borne out on the face of the payslip and is consistent with the evidence of the applicant that he was working four days per week and taking personal leave for the remaining day each week. For these reasons I accept the applicant’s schedule with respect to this period and make the following findings:
(a) from 2 January 2023 to 15 January 2023 the applicant is entitled to $395.65 per week pursuant to s 37 of the 1987 Act.
From 16 January 2023 to 29 January 2023 the applicant’s schedule claims $395.65 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $186.61 per week.
The applicant in reply submits that the payslip for the period 30 January 2023 to
12 February 2023 amends the payments made in the period 16 January 2023 to
29 January 2023 by reducing normal hours by 7.6 hours and increasing personal leave by 7.6 hours. This is borne out on the face of the payslip and is consistent with the evidence of the applicant that he was working four days per week and taking personal leave for the remaining day each week. For these reasons I accept the applicant’s schedule with respect to this period and make the following findings:
(a) from 16 January 2023 to 29 January 2023 the applicant is entitled to $395.65 per week pursuant to s 37 of the 1987 Act.

From 30 January 2023 to 12 February 2023 the applicant’s schedule claims $188.61 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $186.61 per week. The parties agree in their schedules that actual earnings during this period were $1,863.40 and that the s 37 rate for the period was $2,052 per week. $2,052 less actual earnings of $1,863.40 equates to a loss of $188.61. This appears to be a mathematical or typographical error on the part of the respondent. On this basis, I make the following finding:
(a) from 30 January 2023 to 12 February 2023 the applicant is entitled to $188.61 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
13 February 2023 to 26 February 2023. As there is no dispute, I make the following findings for this period:
(a) from 13 February 2023 to 26 February 2023 the applicant is entitled to $395.65 per week pursuant to s 37 of the 1987 Act.
From 27 February 2023 to 12 March 2023 the applicant’s schedule claims $1,728.00 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $186.61 per week.
The applicant in reply acknowledges error in its calculations. The payslip for the period
27 February 2023 to 12 March 2023 records normal earnings of $3,726.79 for the fortnight. When divided by two this equates to weekly earnings for the period of $1,863.39. This was for 68.40 hours worked across the fortnight. Adopting the agreed s 37 rate of $2,052 and reducing this by actual earnings of $1,863.40 this equates to a weekly entitlement for the period of $188.61. This is consistent with the applicant’s submissions in reply. On this basis, I make the following findings:
(a) from 27 February 2023 to 12 March 2023 the applicant is entitled to $188.61 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
13 March 2023 to 2 July 2023. As there is no dispute, I make the following findings for this period, consistent with the applicant’s schedule:
(a) from 13 March 2023 to 2 April 2023 the applicant is entitled to $1,728 per week pursuant to s 37 of the 1987 Act;
(b) from 3 April 2023 to 4 June 2023 the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act;
(c) from 5 June 2023 to 18 June 2023 the applicant is entitled to $1,178.72 per week pursuant to s 37 of the 1987 Act, and
(d) from 19 June 2023 to 2 July 2023 the applicant is entitled to $1,592.96 per week pursuant to s 37 of the 1987 Act.
From 3 July 2023 to 16 July 2023 the applicant’s schedule claims $1,800 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $1,102.28 per week.
In reply, the applicant acknowledges that they payslip for the period 3 July to 16 July 2023 includes 38 normal hours and 38 hours of personal leave. However, the payslip for the period 31 July 2023 to 13 August 2023 deducts 38 normal hours for the period ending 16 July 2023 and adds 38 hours of personal leave. The result is that the applicant had no actual earnings during this period. This is borne out on the payslips. The respondent has not asserted that this incapacity was unrelated to the work injury. For these reasons I make the following findings:
(a) from 3 July 2023 to 16 July 2023 the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
17 July 2023 to 30 July 2023. As there is no dispute, I make the following findings for this period, consistent with the applicant’s schedule:
(a) from 17 July 2023 to 30 July 2023 the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act.
From 31 July 2023 to 13 August 2023 the applicant’s schedule claims $1,800 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $1,102.28 per week.
In reply, the applicant acknowledges that they payslip for the period 31 July 2023 to
13 August 2023 includes 38 normal hours and 38 hours of personal leave. However, the payslip for the period 28 August 2023 to 10 September 2023 deducts 38 normal hours for the period ending 13 August 2023 and adds 38 hours of personal leave. The result is that the applicant had no actual earnings during this period. This is borne out on the payslips. The respondent has not asserted that this incapacity was unrelated to the work injury. For these reasons I make the following findings:
(a) from 31 July 2023 to 13 August 2023 the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
14 August 2023 to 27 August 2023. As there is no dispute, I make the following findings for this period, consistent with the applicant’s schedule:
(a) from 14 August 2023 to 27 August 2023 the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act.
From 28 August 2023 to 10 September 2023 the applicant’s schedule claims $1,800 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $1,102.28 per week.
In reply, the applicant acknowledges that they payslip for the period 28 August 2023 to
10 September 2023 includes 38 normal hours and 38 hours of personal leave. However, the payslip for the period 11 September 2023 to 24 September 2023 deducts 38 normal hours for the period ending 10 September 2023 and adds 38 hours of personal leave. The result is that the applicant had no actual earnings during this period. This is borne out on the payslips. The respondent has not asserted that this incapacity was unrelated to the work injury. For these reasons I make the following findings:
(a) from 28 August 2023 to 10 September the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
11 September 2023 to 24 September 2023. As there is no dispute, I make the following findings for this period, consistent with the applicant’s schedule:
(a) from 11 September 2023 to 24 September 2023 the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act.
From 25 September 2023 to 1 October 2023 the applicant’s schedule claims $1,800 per week pursuant to s 37 of the 1987 Act. From 2 October 2023 the applicant’s schedule claims $1,840 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $1,274.11 per week.
In reply, the applicant acknowledges that the payslip for the period 25 September 2023 to
1 October 2023 includes 68.40 normal hours and 7.4 hours of public holiday not worked. However, the payslip for the period 9 October 2023 to 22 October 2023 deducts 68.40 normal hours and adds 68.40 hours of annual leave. The result is that the applicant had no actual earnings during this period. This is borne out on the payslips. It is also consistent with the evidence of the applicant that by October 2023 he had exhausted all paid personal leave and started using annual leave. For these reasons I make the following findings:
(a) from 25 September 2023 to 1 October 2023 the applicant is entitled to $1,800 per week pursuant to s 37 of the 1987 Act, and
(b) from 2 October 2023 to 8 October 2023 the applicant is entitled to $1,840 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
9 October 2023 to 5 November 2023. As there is no dispute, I make the following findings for this period, consistent with the applicant’s schedule:
(a) from 9 October 2023 to 5 November 2023 the applicant is entitled to $1,840 per week pursuant to s 37 of the 1987 Act.
From 6 November 2023 to 19 November 2023 the applicant’s schedule claims $1,840 per week pursuant to s 37 of the 1987 Act. The respondent submits the applicant is entitled to $1,124.94.28 per week.
In reply, the applicant acknowledges that the payslip for the period 6 November 2023 to
19 November 2023 includes 38 normal hours and 38 hours of annual leave. However, the payslip for the period 4 December 2023 to 17 December 2023 deducts 38 normal hours for the period ending 19 November 2023 and adds 38 hours of annual leave. The result is that the applicant had no actual earnings during this period. This is borne out on the payslips. It is also consistent with the evidence of the applicant that by October 2023 he had exhausted all paid personal leave and started using annual leave. For these reasons I make the following findings:
(a) from 6 November 2023 to 19 November 2023 the applicant is entitled to $1,840 per week pursuant to s 37 of the 1987 Act.
The respondent’s schedule does not challenge the applicant’s claim for the period
20 November 2023 to 30 June 2024 other than with respect to the end date of the second entitlement period. As there is no dispute, I make the following findings for this period, consistent with the applicant’s schedule:
(a) from 20 November 2023 to 3 December 2023 the applicant is entitled to $1,124.91 per week pursuant to s 37 of the 1987 Act;
(b) from 4 December 2023 to 17 December 2023 the applicant is entitled to $64.81 per week pursuant to s 37 of the 1987 Act;
(c) from 18 December 2023 to 31 December 2023 the applicant is entitled to $1,124.91 per week pursuant to s 37 of the 1987 Act;
(d) from 1 January 2024 to 28 January 2024 the applicant is entitled to $276.83 per week pursuant to s 37 of the 1987 Act;
(e) from 29 January 2024 to 11 February 2024 the applicant is entitled to $912.89 per week pursuant to s 37 of the 1987 Act;
(f) from 12 February 2024 to 25 February 2024 the applicant is entitled to $1,309.06 per week pursuant to s 37 of the 1987 Act;
(g) from 26 February 2024 to 10 March 2024 the applicant is entitled to $799.91 per week pursuant to s 37 of the 1987 Act;
(h) from 11 March 2024 to 31 March 2024 the applicant is entitled to $1,840.00 per week pursuant to s 37 of the 1987 Act;
(i) from 1 April 2024 to 7 April 2024 the applicant is entitled to $1,872.00 per week pursuant to s 37 of the 1987 Act;
(j) from 8 April 2024 to 21 April 2024 the applicant is entitled to $811.91 per week pursuant to s 37 of the 1987 Act, and
(k) from 22 April 2024 to 30 June 2024 the applicant is entitled to $1,872.00 per week pursuant to s 37 of the 1987 Act.
The parties accept that the applicant has been paid, prior to 3 January 2022, 14 weeks and has 116 weeks remaining in the second entitlement period. The respondent submitted that the second entitlement period would end on 23 June 2024. This is on the basis that the applicant’s schedule did not account for the week of 24 January 2022 to 30 January 2022 where no claim was made but the applicant accepted there was an entitlement in his submissions in reply. This is borne out on the schedule.
However, the week numbering in the applicant’s schedule skips weeks 19 to 23 and recommences at 24 that five weeks in the second entitlement period are not accounted for. I have not made any orders after 30 June 2024 as no submissions were made in the schedules with respect to the applicant’s entitlements after that date, however the applicant has not fully exhausted the second entitlement period.

SUMMARY

The applicant is entitled to weekly compensation and medical expenses in accordance with the orders set out in the certificate of determination.

[2024] NSWPIC 654

28 November 2024