Stewart v Secretary, Department of Communities and Justice

In the matter of Stewart v Secretary, Department of Communities and Justice, the court was asked to determine the appropriate period for calculating the applicant’s pre-injury average weekly earnings (PIAWE) in the context of a workers compensation claim. The applicant, Mr Stewart, had suffered an accepted physical injury for which he received weekly compensation for total incapacity from 20 November 2020 to 1 February 2021. Subsequently, Mr Stewart submitted a claim for a psychological injury, for which liability was also accepted and payments made for total incapacity. The issue at hand was whether the period for calculating Mr Stewart’s PIAWE should be adjusted to exclude the period during which he received compensation for the physical injury.

The court was tasked with interpreting the provisions of the Workers Compensation Act 1987 and the Workers Compensation Regulations 2016 in order to resolve this issue. It was clear that the compensation payments in respect of the prior injury were required to be excluded from the calculation of PIAWE. However, the court had to decide whether the period for which those payments were made should also be excluded. Regulation 8D of the Workers Compensation Regulations 2016 provides for an alignment of the period for calculation of the PIAWE earnings period with any regular interval during which the worker is entitled to receive payment for earnings for work performed in the employment.

The court found that applying regulation 8D to the circumstances of this case, and disregarding the period during which Mr Stewart received weekly compensation in respect of the prior injury, adjusted the PIAWE earnings period to that during which Mr Stewart actually earned income in his employment with the respondent. The alternative approach, excluding the prior compensation payments but including the period during which compensation was paid, would create a logical absurdity where Mr Stewart’s 52-week PIAWE was calculated on earnings for a shorter period despite him remaining in employment and only being unable to work because of an earlier injury for which he was receiving compensation payments. Therefore, the court held that the period during which Mr Stewart’s PIAWE should be calculated in this matter was 1 February 2020 to 19 November 2020.

The court’s decision resulted in the appropriate adjustment of Mr Stewart’s PIAWE calculation period, ensuring it aligned with his actual earnings period. The court’s interpretation of the relevant statutory and regulatory provisions provided clarity and avoided the logical inconsistency that would arise from the alternative approach. The outcome ensures that Mr Stewart’s PIAWE is calculated accurately, reflecting the period during which he was actively earning income, thereby providing a fair basis for determining his permanent impairment compensation.