Wake v State Emergency Services

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wake v State Emergency Services [2022] NSWPIC 50
APPLICANT:	Lynda Jane Wake
RESPONDENT:	State Emergency Services
MEMBER:	8 February 2022
DATE OF DECISION:	Michael Wright
CATCHWORDS:	WORKERS COMPENSATION - Work capacity dispute; calculation of pre-injury average weekly earnings (PIAWE); applicant took period of 6 months long service leave half pay within the 52 week PIAWE relevant earnings period; Schedule 3, clause 2 of the Workers Compensation Act 1987 and clause 8C of the Workers compensation regulation considered; statutory interpretation; consideration of Cain v Tamworth Aboriginal Medical Service; beneficial legislation consideration; Held - period of long service leave half pay excluded from relevant earnings period; award for the applicant.
DETERMINATIONS MADE:	1. The relevant period for the calculation of pre-injury average weekly earnings (PIAWE) was from 9 November 2019 to 8 November 2020, excluding the period from 15 November 2019 to 14 May 2020. 2. PIAWE is $2061.02. 3. Respondent to pay the applicant weekly payments of compensation pursuant to section 36(1) of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $1957.97 per week for the period 9 November 2020 to 9 February 2021, and pursuant to section 37(1) of the 1987 Act, from 10 February 2021 and continuing at the rate of $1648.82 per week, and as indexed from time to time, with credit to the respondent for all payments of weekly compensation made to date that have not already been reimbursed to the employer.

STATEMENT OF REASONS

BACKGROUND

This is an application by Ms Lynda Wake (the applicant) for weekly compensation as a result of psychological injury sustained in the course of her employment with State Emergency Services (the respondent).
The respondent issued a section 78 notice dated 5 February 2021 relating to the calculation of pre-injury average weekly earnings (PIAWE) and also section 287A review notices dated 1 June 2021, 24 June 2021 and 3 August 2021, in which the earlier notices were confirmed. In the section 287 a review notice dated 3 August 2021, the respondent indicated that the extended leave at half pay for the period 15 November 2019 to 14 May 2020 is to be included in the relevant period for the calculation of PIAWE under Schedule 3 Part 3(a) and it does not fall within clauses 8A to 8E of the Workers Compensation Regulation 2016 (the 2016 Regulation). The respondent was of the view that only periods of unpaid leave or other change in earnings circumstance in employment may allow for an exclusion from the relevant period and extended leave at half pay did not come within such an exclusion.

PROCEDURE BEFORE THE COMMISSION

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.
A hearing by way of telephone conference was held on 27 September 2021. The applicant was represented by Ms Babb, solicitor and the respondent by Mr Mitchell, solicitor. A timetable was set for written submissions. Written submissions were provided by
Mr Hanrahan, counsel for the applicant and by Ms Balendra, counsel for the respondent.
The application in this matter was originally for an interim payment direction. An interim payment direction is not available in this case where the dispute does not come within the terms of section 297(1A) of the Workplace Injury Management and Workers Compensation Act 1998, that is the dispute does not concern a decision by the insurer to “discontinue or reduce weekly payments of compensation”, and hence the 12 week restriction of section 298 would otherwise continue to apply. In my view, a dispute as to the amount PIAWE is not a decision to discontinue or reduce weekly payments of compensation. This is therefore a matter for determination by me as a member the Commission.

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 attached documents, and
(c)    statement of the applicant dated 7 October 2021.

Oral evidence

There was no application to cross-examine the applicant or to give oral evidence.

Relevant documents

The applicant provided statements dated 10 December 2020 and 7 October 2021. In her statement dated 10 December 2020, the applicant said that her last day at work was 6 November 2020. She said that on 9 November 2020 she woke up anxious and stressed, consulted her GP, and was given a medical certificate for time off work. In her statement dated 7 October 2021, the applicant attached a copy of a medical certificate confirming that she was unfit for work from 9 November 2020.
The applicant said in her statement of 7 October 2021 that she negotiated to take an extended holiday by way of long service leave at half pay for six months from 2 November 2019 to 11 May 2020 and she took her three months entitlement to long service leave over the six-month period.

FINDINGS AND REASONS

Applicant’s submissions

The applicant noted the operation of Schedule 3, clause 2(2) of the Workers Compensation Act 1987 (the 1987 Act) in respect of “the relevant earning period” and also the definition of PIAWE contained in clause 2(1). It was submitted that the reference in clause 2(2) to subclause (1) is fundamentally important to this dispute. The applicant also noted the provisions of clause 2(3) and the definitions found within section 32A (2) of the 1987 Act.
The applicant noted the manner of adjustment for relevant earning periods in circumstances that do not neatly fit into the 52-week requirement as provided by clauses 8A – 8EA of the 2016 Regulation.
It was submitted that nevertheless Schedule 3 clause 6 of the 1987 Act defines the meaning of “earnings” for the purposes of calculating PIAWE.
It was submitted that although the extended long service leave taken by the applicant could be characterised as a relevant “other change in earnings circumstances in the employment” it is nevertheless a period of long service leave where the applicant did not perform any work. It was submitted that the period of long service leave should be excluded from the calculation in accordance with the definition contained in Schedule 3 clause 6 of the 1987 Act. It was submitted that in accordance with Schedule 3 clause 6 that the adjustment of the relevant earnings. By excluding from the period any period before the change to the earnings of the worker occurred would have the effect of excluding the period prior to 11 May 2020, or in the alternative, the weeks when work was not performed should likewise be excluded from the calculation.
The applicant submitted that the correct period for the relevant earnings period would have the effect of excluding the period prior to 11 May 2020, that is for the period between 11 May 2020 and 9 November 2020.
I will also refer to other submissions of the applicant in the reasons below.

Respondent’s submissions

The respondent submitted that the period that the applicant was on long service leave was between 15 November 2020, although correctly it was 15 November 2019, and 14 May 2020, while noting that the applicant stated the period was between 2 November 2019 and 10 May 2020.
The respondent noted the definition of PIAWE in Schedule 3 clause 2 (1) of the 1987 Act, clause 2 (2) with respect to “the relevant earning period”, clause 2 (3) specifying that regulations may provide for the adjustment of the relevant earning period, clause 6 for a definition of earnings relied upon by the applicant, and the adjustment provisions of the 2016 Regulation, including relevantly clause 8C.
The respondent submitted that the applicant misdescribed the operation of Schedule 3 clause 2. It submitted that what is contemplated by clause 2 in determining the relevant earning period for the purpose of the calculation of PIAWE the period of 52 weeks prior to the workers injury is to be utilised except as adjusted by the regulations. It was submitted that Schedule 3 clause 6 is used only for the purposes of defining what “earnings” are in order to enliven the operation of clause 2 and it is not relevant to the calculation of the “relevant earning period”.
The respondent submitted that the crux of the dispute turns on whether or not the period of extended long service leave on half pay should be included in the “relevant earning period” for the purpose of calculating PIAWE.
It was submitted that any adjustment to the relevant earning period can only be in accordance with the regulations and specifically clause 8C. It was submitted that although clause 8C was considered in the decision of Cain v Tamworth Aboriginal Medical Service[1], that decision concerned an increase in the hourly rate of pay which could be distinguished in the circumstances of this case, as a short period of half pay cannot be equated to an ongoing pay increase.
[1] [2021] NSWPIC 193
It was also submitted that there was no change to the “employment arrangement” as there was no change in this case to the circumstances of the applicant’s employment such as a change in hours or the type of work that she was doing and that, tellingly, the example given in clause 8C is a change from full-time to part-time work, which is self-evidently an ongoing change to the employment arrangement.

Applicant’s submissions in reply

In reply, the applicant submitted that the inclusion of the extended leave on half pay from 15 November 2019 to 14 May 2020 had been erroneously included by the insurer in the relevant earnings period by reference to “unpaid leave”, because Schedule 3, clause 2 requires insurer “to take into account any period of unpaid leave… in the employment”.
It was submitted that a period of long service leave where a worker does not perform any work should properly be excluded from the calculation as per Schedule 3, clause 6.
It was submitted that clause 2(3)(a) and (b) of the 1987 Act requires adjustment of the relevant earnings. To take into account any period of unpaid leave and this would have the effect of excluding the period before 11 May 2020 when the worker returned to full earnings after her leave. It was submitted that the period for the calculation was from 11 May 2020 to 9 November 2020 and this interpretation is not only consistent with regulation 8C but also 8E.

Reasons

The issue for determination is the correct calculation of PIAWE. The applicant disputed the insurer’s work capacity decision about the amount of her pre-injury earnings.
Section 43 (1) of the 1987 Act relevantly provides:
“43 Work capacity decisions by insurers
(1) The following decisions of an insurer are work capacity decisions—
…
(d)A decision about the amount of an injured workers pre-injury average weekly earnings or current weekly earnings…”
Section 43 of the 1987 Act referred to above is within Division 2 of Part 3. A definitions section is contained within Part 3, Division 2 of the 1987 Act at section 32A. Section 32A(2) relevantly provides:
“(2) Words and expressions in this Division that are defined in Schedule 3 have the meanings provided by that Schedule. The regulations may amend Schedule 3.
Note—
Definitions include current work capacity, current weekly earnings and pre-injury average weekly earnings.”
Schedule 3, clause 1 of the 1987 Act provides:
“the words and expressions defined in this Schedule apply for the purposes of Division 2 of Part 3 of this Act.”
Schedule 3, clause 2 of the 1987 Act (clause 2) provides for the meaning of “preinjury average weekly earnings”. Clause 2 provides as follows:
“2 Meaning of ‘pre-injury average weekly earnings’
(1)Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2)     Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3)     The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a)to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b) to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4)     If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
Schedule 3, clause 6 of the 1987 Act (clause 6) provides for the meaning of “earnings”. It relevantly provides:
“6   Meaning of ‘earnings’
(1)    The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
(2)    The income of a worker does not include—
(a)     any minimum amount paid to a superannuation fund or scheme in respect of the week to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, for the worker, or
(b)     the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or
(c)     any payment in respect of loss of earnings under a scheme to which the workers compensation legislation relates or under any other insurance or compensation scheme, or
(d)     any payment made without obligation by the employer.
…”
Part 4 of the 2016 Regulation provides for adjustments of the relevant earning period for injuries occurring on or after 21 October 2019 for a number of prescribed circumstances.
Regulation 8AA is located within Part 4 of the 2016 Regulation. It relevantly provides definitions for Part 4:
“8AA Definitions
In this Part—
…
the relevant earning period has the same meaning as in clause 2(2) of Schedule 3 to the 1987 Act.
…”
Regulation 8A of the 2016 Regulation relevantly provides:
“8A Operation of Division
(1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker.
…”
Regulation 8C of the 2016 Regulation (regulation 8C) provides for an adjustment for a financially material changed earnings. It provides as follows:
“8C   Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act
(1)     The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2)     The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
The parties agreed that the date of injury is deemed by section 15 of the 1987 Act to have been 9 November 2020.
There was no dispute that the applicant was on a period of long service leave, described by both parties as being on half pay, for the period 15 November 2019 to 14 May 2020. It was also not disputed that the period that the applicant was receiving half pay while on long service leave was the result of a negotiated long service leave entitlement.
The applicant in written submissions in chief submitted that while the long service leave taken by the applicant could be characterised as a relevant “other change in earning circumstances in the employment”, the applicant did not perform any work in that period of long service leave. It was submitted that the operation of clause 6, Schedule 3 would exclude the period prior to 11 May 2020, or in the alternative exclude the period when work was not performed.
The respondent submitted that clause 2 does not operate as submitted by the applicant as it contemplates that in determining the relevant earning period, for the purposes of the PIAWE calculation, the whole of the period of 52 weeks prior to injury is to be utilised, except as adjusted by the regulations. The respondent also submitted that clause 6 is used only for the purposes of defining “earnings” in order to enliven the operation of clause 2 but is not relevant to the calculation of the “relevant earning period”.
I do not accept the submission that clause 6 is relevant to “earnings” but not to “relevant earning period”, as it is not supported by the structure of clause 2. Clause 2(1) sets out the meaning of PIAWE. Clause 2(2) sets the “relevant earning period” with reference to “earnings”, that is no regard being given to earnings “for work performed” before or after the period of 52 weeks ending immediately before the date of injury. Clause 2(3) provides for an adjustment of the relevant earning period with reference to a change of earnings. The relevant earning period, contingent upon a consideration of earnings, is continued into regulation 8C. The context of regulation 8C is discussed below.
However, the question is whether the structure of clause 2 supports the respondent’s submission that clause 2 contemplates the whole of the 52 week period prior to injury in determining the relevant earning period. Clause 2(2) sets the 52 week prior to injury as the relevant earning period except as provided by clause 2 or by the regulations made under that clause. If that exception were limited to the regulations then it would be necessary for the regulations, including regulation 8C, to provide the exception. Clause 2(2) also refers to an exception within clause 2 itself. While in my view clause 2 does not expressly provide an exception, it is necessary to consider whether there is an exception inherent in the definition of PIAWE, or whether the interpretation of clause 2 that is contended by the applicant does not require the application of the regulations for the relevant adjustment.
The respondent also submitted that the period of about six months that the applicant was on long service leave half pay was a short period that was not a change of an ongoing nature to the employment arrangement as set out in clause 8C of the 2016 Regulation and, unlike in the circumstances of Cain v Tamworth Aboriginal Medical Service[2] (Cain), this is a short period of half pay which could not be equated to an ongoing pay increase.
[2] [2021] NSWPIC 193
I do not accept the respondent’s submissions in this regard.
Clause 6(1) relates earnings received “in respect of a week” to income received for work performed in the week. In the period in question, the applicant received income representing “half pay” for long service leave. I accept that the term “half pay” means one half of the ordinary pay or wages that the applicant would otherwise receive while on long service leave. In a pay slip for the period 15 November 2019 to 28 November 2019 attached to the application the “wage type” was noted as “Extended Lv Half Pay” for an amount of $1,442.71. She said in her statement dated 11 October 2021 that she did not work in the period in which she was on long service leave.

In my view, the applicant did not receive earnings in respect of a week or any week in the period 15 November 2019 to 14 May 2020 within the meaning of clause 6(1). Clause 6(1) does not relate income received to work performed in some other week in the past, and such an interpretation is contrary to the plain meaning of the clause and implicitly reads in unwarranted words or phrases such as “any week” or “past week”.
As noted, clause 2(1) relates the weekly average to the “earnings received”. In my view, the weekly average, that is a calculation implying a division by the number of weeks, is tied to the meaning of earnings received and the number of weeks should not be considered in isolation, or arrived at independently, without reference to weeks in which there are earnings received. The word “gross” in my view makes no difference as it signifies a distinction from “net” rather than a totality of earnings for a period without regard to the meaning under consideration.
Moreover, when no work is performed during a relevant week, the amount of earnings received is not a value of “0” or “nil”, rather it is a null result, and the relevant week is not a week for the purpose of the calculation within the statutory meaning. To include such a result would be a misleading and arbitrary calculation, in my view.
This outcome, in my view, would not be anomalous with other not uncommon working situations, such as casual, seasonal or piecemeal workers who may experience unfortunate periods of not receiving earnings in any particular week. As a simple example, a casual worker, who earns $500 gross per week for work performed in a particular week, may work 26 weeks out of the relevant 52 weeks, for example they work every other week. If earnings received are regarded as “0” for weeks not worked and average weeks include weeks not worked, then the PIAWE calculation results in $250 gross per week. The interpretation that
I have found in my view avoids such anomalous situations.
I have considered the context of the PIAWE provisions referred to above in the 1987 Act. The 1987 Act is still beneficial legislation[3] on the whole[4]. While the 2012 amendments, relevantly in respect of weekly compensation, were less beneficial, it is possible that aspects of a less than beneficial amendment may be interpreted as beneficial[5] , although not every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially.[6] in my view, the definition of PIAWE, including the manner of calculation, is neutral in terms of the beneficial legislation, that is it does not detract from the purpose of providing an entitlement to weekly compensation benefits, and is distinct from other aspects of the weekly compensation amendments, such as limiting the periods of weekly compensation payable. Accordingly, an interpretation based upon beneficial legislation is available having regard to the specific words and meaning applicable to clauses 2 and 6.
[3] J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632
[4] ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel) at [29]
[5] Parker v The President of the Industrial Court of Queensland & Q-Comp [2009] QCA 120
[6] Goudappel
If I am found to be wrong in respect of the interpretation of clauses 2 and 6, or in the alternative that regulation 8C applies in any event, then I turn to a consideration of regulation 8C. The respondent submitted that regulation 8C does apply in the manner that it contended. The applicant did not directly address this issue. The applicant appeared to indicate on the one hand that the long service leave arrangements were not really a change of employment circumstances, and on the other that they were not earnings received through work performed during that period. However, the applicant did submit that the PIAWE calculation was consistent with regulation 8C and also 8E.
At this point, I note that regulation 8E provides for an adjustment of the relevant earning period which broadly is based upon unpaid leave in the commencement of a period of not less than seven consecutive calendar days and no earnings in the employment were paid or payable to the worker. There was no evidence before me of unpaid leave in the relevant earning period and in my view regulation 8E does not apply.
The applicant also appeared to submit, as noted above, that the inclusion of the extended leave of half pay was erroneously included in the relevant earnings. With reference to “unpaid leave” because clause 2 requires the insurer “to take into account any period of unpaid leave…in the employment”. If this submission was intended to indicate that clause 2(3)(a) operates to restrict in some way clause 2(2), then I would not accept this submission as in my view clause 2(3)(a) is concerned with the adjustments that the regulations may make. However, in my view this submission is based upon the proposition that the interpretation of regulation 8C should have regard to clause 2(3)(a).
The respondent submitted that this short period of half pay was not a change of an ongoing nature to the employment arrangement. It submitted that there was no change to the employment arrangement as there was no change to the circumstances of employment such as in her hours or the type of work that she was doing. The respondent submitted that the example given in clause 8C was of the change from full-time to part-time work, which is self-evidently an ongoing change to the employment arrangement.
I do not accept the respondent’s submissions.
The term “employment arrangement” was discussed in Cain. It was found that the example listed in regulation 8C does not place a limit on the content of the “employment arrangement”. The contract of service, including hours of work and rate of pay, was found to be part, although not necessarily all, of the employment arrangement and wages paid to a worker were necessarily a part of the contract of service.
In this case, it was not disputed that there was a negotiated agreement with the employer that the applicant be paid at half pay for the period of the long service leave. This, in my view, was part of the applicant’s employment arrangements.
The question to be considered is whether and at what point was there an ongoing change in the employment arrangement. In my view, this change took place at the time that the applicant returned to work from long service leave. That is, the applicant returned to full-time work following the period of not working and receiving half pay. The ongoing change was the change to full-time pay on return to work. I do not accept that the period of leave on half pay was the relevant change and that this period was not ongoing. There were in fact two changes to the employment arrangements, the first was the applicant commencing long service leave on negotiated half pay, and the second was the applicant returning to full-time work.
The respondent’s submissions were based upon the premise that the period of long service leave was a temporary change in the overall ongoing employment arrangement of the applicant’s full-time work.
Regulation 8C is delegated legislation of the 1987 Act.[7] My observations above in respect of the context of the beneficial workers compensation legislation also apply here.[8] The context for the interpretation of regulation 8C is the context of the 1987 Act and to give effect to the intention and operation of the 1987 Act.[9] While section 43(2) of the 1987 Act, in the context of words and expressions, permits the 2016 Regulation to amend Schedule 3, the boundaries of that power will be construed narrowly and strictly, rather than expansively[10].
[7] Clause 2(3) of Schedule 3
[8] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398
[9] Kevin Polglaze v Veterinary Practitioners Board of NSW and anor [2009] NSWSC 347
[10] Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 at [102]-[108]
Section 43(2) of the 1987 Act did not expressly permit the 2016 Regulation to amend Schedule 3 other than with respect to words and expressions. Regulation 8C did not expressly amend clause 2 or clause 6. The heading of regulation 8C does refer to clause 2(3)(a), consistent with the source of the power delegated to regulation 8C. To the extent that the interpretation urged of regulation 8C may result in a lesser adjustment to the relevant earning period than might be the effect of using the words of clause 2(3)(a), I will interpret regulation 8C narrowly and strictly.
I interpret regulation 8C within the context of clause 2(3) of Schedule 3 of the 1987 Act.
I therefore consider that a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker, as required by regulation 8C, should be interpreted within the context of any period of unpaid leave or other change in earnings circumstances in the employment, as required by clause 2(3). The earnings referred to in regulation 8C are the earnings defined in clause 6.
Adopting a beneficial interpretation of the 1987 Act, with the PIAWE calculation being neutral, a period of half pay long service leave comes within the meaning of clause 2(3). It follows, adopting a beneficial interpretation of regulation 8C, that a period of half pay long service leave is a period which results in a return to work on full pay, which is the change of an ongoing nature to the employment arrangement. The relevant change in the earnings of the worker followed a period when the worker received no earnings within the meaning of clause 6, that is when the applicant returned to work on full pay with the recommencement of her earnings on an ongoing basis.
This interpretation is based upon a reading of the plain meaning of the words of regulation 8C, that is, there was “a change of an ongoing nature”. Those words do not specify that an earlier change for a period of leave is to be preferred in these circumstances, nor do they specify that a period of leave may not result in a change of an ongoing nature. The interpretation that I have preferred is also consistent with the words of clause 2(3)(a), that is having regard to a period of unpaid leave, or other relevant change in earnings circumstances, which in my view includes a period of half pay leave.
In my view, the period to be excluded is the period of the long service leave half pay, rather than the entire period prior to the applicant returning to work on 14 May 2020. This interpretation in my view is consistent with the meaning of clause 2(3)(a) and consequently regulation 8C(2). Regulation 8C(2) could be interpreted as excluding the entire period before 14 May 2020, although that interpretation is not consistent with the context of clause 2(3)(a) and is not preferred.
I find that the relevant earning period for the purpose of the PIAWE calculation was from 9 November 2019 to 8 November 2020, excluding the period from 15 November 2019 to 14 May 2020.
The applicant submitted that, if successful on the application, the correct PIAWE is $2,061.02. There was nothing to the contrary from the respondent in this circumstance. Given that there was a period of less than one week of earnings prior to 15 November 2019 for the purposes of the PIAWE calculation, with my understanding of the applicant’s evidence that she was on the same level of wages in that short period, although submissions did not address that point, I find that PIAWE is $2,061.02.
The applicant submitted that an order for weekly compensation payments be made pursuant to section 36 and section 37 with credit to the respondent for payments of compensation already made and that have not already been reimbursed to the employer. The respondent did not make a submission on this point. The section 287A review notice dated 24 June 2021 did not directly refer to the nature of the capacity, as it was not in dispute, but the calculations for the second review period were based upon 80% of PIAWE, consistent with section 37(1). As PIAWE was the only issue in dispute, capacity is not in dispute and the review notice dated 24 June 2021 is consistent with orders pursuant to section 36(1) and section 37(1), orders will be made for weekly compensation at the rates submitted by the applicant. That is, orders pursuant to section 36(1) of the 1987 Act at the rate of $1957.97 per week for the period 9 November 2020 to 9 February 2021, and pursuant to section 37(1) of the 1987 Act, from 10 February 2021 and continuing at the rate of $1,648.82 per week, and as indexed from time to time, with credit to the respondent for all payments of weekly compensation made to date that have not already been reimbursed to the employer.

[2022] NSWPIC 50

8 February 2022