Theoret v Aces Incorporated (No 2)

[2021] NSWWCCPD 8

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Theoret v Aces Incorporated (No 2) [2021] NSWWCCPD 8

APPELLANT:

Patricia Theoret

RESPONDENT:

Aces Incorporated

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-5261/19

ARBITRATOR:

Mr J Harris

DATE OF ARBITRATOR’S DECISION:

6 November 2019

DATE OF APPEAL DECISION:

25 March 2020

DATE OF COURT OF APPEAL DECSISION:

2 February 2021

DATE OF DECISION ON REMITTER:

9 February 2021

SUBJECT MATTER OF DECISION:

Orders on remitter from the Court of Appeal

PRESIDENTIAL MEMBER:

President Judge Phillips

HEARING:

On the papers

REPRESENTATION:

Appellant:

Carroll & O’Dea Lawyers

Respondent:

Hicksons Lawyers

ORDERS MADE ON APPEAL:

1.    The Certificate of Determination dated 6 November 2019 is revoked.

2.    The matter is remitted for re-determination by a different Arbitrator, in accordance with the Court of Appeal decision in Theoret v Aces Incorporated [2021] NSWCA 3 which identified the errors into which the original Arbitrator and Presidential member had fallen.

INTRODUCTION

1. This matter comes before the Commission pursuant to an order for remitter made by the Court of Appeal in Theoret v Aces Incorporated.[1]

   [1] [2021] NSWCA 3 (Theoret).

BACKGROUND

1. This claim is brought by Patricia Theoret against her employer Aces Incorporated. Ms Theoret suffered injuries at different times during the same employment with Aces Incorporated. Ms Theoret first became entitled to weekly compensation of workers compensation in 2004. This was when she first became entitled to receive weekly compensation. Ms Theoret continued to receive weekly payments until September 2017. In 2018, the insurer carried out a work capacity assessment and as a result of that assessment, Ms Theoret continued to be entitled to receive weekly payments of workers compensation.

2. On 3 April 2019, the insurer gave notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) advising Ms Theoret that she was assessed as having no work capacity. This notice also advised Ms Theoret of the insurer’s determination of her pre-injury average weekly earning entitlement (indexed PIAWE) under s 43(1)(d) of the Workers Compensation Act 1987 (the 1987 Act).

3. On 24 July 2019, Ms Theoret’s lawyers sought a review of the s 78 decision arguing that the PIAWE calculation should be indexed from the date she first received weekly compensation. This matter involved the construction of s 82A of the 1987 Act, which commenced on 1 October 2012.

4. The proceedings were determined initially by the Arbitrator on 6 November 2019, who concluded that the indexation of her weekly payments applied from the first review date after 1 October 2012. An appeal to a Presidential member was determined on 25 March 2020 in a decision which confirmed the decision of the Arbitrator.

5. Ms Theoret appealed the decision of the Presidential member to the Court of appeal.

THE DECISION OF THE COURT OF APPEAL

1. The Court of Appeal decision is dated 2 February 2021. McCallum JA said as follows:

   “The critical question is whether, properly construed, s 82A provides for historical indexation,…