Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Limited

Transport Contract Services (NSW) Pty Ltd (TCS) brought an application against Employers Mutual NSW Limited (EM) to contest the assessment of a worker's pre-injury average weekly earnings (PIAWE). The dispute arose after the worker, a courier driver who provided his own truck, suffered an Achilles injury and was paid all entitlements by EM under the Workers Compensation Act 1987 (1987 Act). TCS argued that it should be able to litigate the dispute and that business expenses should be deducted from the income in calculating the PIAWE. EM countered that TCS did not have the right to litigate the dispute and that business expenses should not be deducted from the income in calculating the PIAWE.

The court was required to determine whether TCS had the right to contest the PIAWE assessment by EM and whether business expenses should be deducted from the income in calculating the PIAWE. The court considered the provisions of section 287(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 and Schedule 3 of the 1987 Act. The court also considered the insurer's argument that the mandatory provisions of the insurance policy should be read contextually with the Act.

The court rejected EM's argument that section 287(1)(b) of the 1987 Act only allowed disputes between an employer and the insurer in connection with a claim for compensation brought by the worker against the insurer. The court held that the section was expressed in clear words that a dispute could arise between an employer and the insurer and did not require a dispute on the worker’s claim brought against the insurer. The court also rejected EM's argument that business expenses should be deducted from the income in calculating the PIAWE. The court held that the earnings in clauses 2 and 6 of Schedule 3 of the 1987 Act did not specify that expenses necessarily incurred were deducted from earnings. The court held that the insurer had correctly assessed the worker’s PIAWE based on the provisions of the agreement.

The court held that TCS was entitled to litigate the dispute in the Commission and that the insurer had correctly assessed the worker’s PIAWE.