Wang v Zhong Y Shen trading as SH and CJ Quality Meat and Poultry

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wang v Zhong Y Shen trading as SH and CJ Quality Meat and Poultry [2022] NSWPIC 441
APPLICANT:	Mingbo Wang
RESPONDENT:	Zhong Y Shen t/as SH & CJ Quality Meat & Poultry
MEMBER:	Jane Peacock
DATE OF DECISION:	5 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Dispute about pre-injury weekly earnings and current capacity for work in some suitable employment; evidence tendered from both sides largely unsatisfactory; no wage records or tax records kept; applicant paid in cash; Held — determination made on the available evidence being deposits in bank account; award in favour of the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent pay the applicant weekly compensation under sections 36 and 37 of the Workers Compensation Act 1987 as follows: (a) under section 36 from 15 July 2020 to 13 October 2020 at the rate of 95% of pre-injury average earnings (PIAWE) of $1,405.58 per week; (b) under section 37 from 14 October 2020 to 15 April 2021 at the rate of 80% of the PIAWE of $1,405.58 per week; (c) under section 37 from 16 April 2021 to date and continuing in accordance with the provisions of the Act at the rate of 95% of PIAWE less $450 per week, and (d) the respondent is to have credit for payments already made, and (e) the PIAWE rate referred to above is subject to indexation in accordance with the provisions of the Act.

STATEMENT OF REASONS

BACKGROUND

By the Application to Resolve a Dispute (the Application), filed by the applicant Mr Wang challenges a work capacity decision (WCD) and seeks weekly compensation as a result of injury to his dominant right hand on 15 July 2020.
The respondent is Zhong Y Shen t/as SH & CJ Quality Meat & Poultry. The respondent was insured for the purposes of workers compensation.

ISSUES FOR DETERMINATION

There is no dispute that Mr Wang suffered an injury to his dominant right hand at work as a butcher on 15 July 2020 when he lacerated his finger. He underwent surgery on his finger the following day. He did not return to work with the respondent.
The insurer issued two WCDs.
The proceedings were brought before the Personal Injury Commission (Commission) because the insurer issued a WCD. The matter came before a delegate of the President who made an interim payment direction on 4 August 2021.
The matter also involved a section 151A dispute. This resolved in the course of the proceedings.
The parties engaged in discussions to resolve the balance of the matter but this was unsuccessful.
The dispute that remains is the applicable pre-injury average weekly earnings (PIAWE) and Mr Wang’s ability to earn in some suitable employment on the basis of his current capacity for work.

PROCEDURE BEFORE THE COMMISSION

A conciliation/arbitration was held on 3 November 2021. This was adjourned by consent and at the request of the respondent and with the approval of the Head of the Division so that the respondent could issue directions for production on the Commonwealth Bank. The following directions were made:
“At the conciliation/arbitration on 3 November 2021 the following directions were made:
1.The matter is listed for a further conciliation/arbitration on 12 January 2021 at 10am by telephone, and an interpreter in the Chinese-Mandarin language be arranged by the Commission.
2.The respondent has leave to file a direction for production in accordance with the attached order and in the event either party seeks to rely on any documents so produced they are to file and serve copies 3 days prior to the con/arb where the question of leave will be dealt with.
3.The applicant to file and serve an updated wages schedule within 14 days and the respondent to file and serve any competing wages schedule within a further 14 days and the question of leave will be dealt with at the arbitration.”
The conciliation/arbitration was adjourned to 12 January 2022. There was an appearance on behalf of the insurer but not by the insurer and although they were legally represented by a solicitor and counsel the insurer was not able to be contacted. There was no production by the Commonwealth Bank and they were similarly unable to be contacted by the respondent’s solicitor. The context of the non-appearance and non production was that Sydney was in the grips of a COVID wave.
In these circumstances the matter was adjourned for a further conciliation/arbitration with the following directions:
“At the conciliation/arbitration on 12 January 2022 the following directions were made:
4.     It is noted that there was no compliance with the direction for production issued on the Commonwealth Bank and the respondent presses for the production of documents from the Commonwealth Bank.
5.     Extend time for compliance with the direction for production 14 days from today in accordance with the attached order.
6.     The respondent to notify the Commonwealth Bank forthwith in writing of the extension of time order.
7.     The matter is listed for a further conciliation/arbitration on 11 March 2022 at 2pm by telephone, and an interpreter in the Chinese-Mandarin language be arranged by the Commission.
8.     The applicant to file and serve an updated wages schedule within 21 days and the question of leave will be dealt with at the arbitration.
9.     In the event either party seeks to rely on any documents produced by the Commonwealth Bank they are to file and serve copies 7 days prior to the conciliation/arbitration where question of leave will be dealt with.”
At the direction of the Head of the Division the further conciliation/arbitration was vacated and the matter listed for a further telephone conference in which to direct the parties to provide written submissions.
The parties did not comply with the timetable and on repeated follow up informed the Commission that they were attempting to resolve the matter.
The parties were unable to resolve the matter although they did resolve the 151A issue such that the respondent withdrew its dispute in respect of the 151A issue.
In these circumstances, a further timetable was directed as follows:
“1.     It is noted that at the further telephone conference in this matter the parties were directed to file and serve written submissions. The commission was subsequently advised by the respondent that the parties had not adhered to the timetable because the parties had resolved the section 151A dispute by the respondent conceding that issue and the parties were engaging in discussions in an attempt to resolve the balance of the dispute.
2.     Despite the Commission following up the parties, the parties have not informed the Commission that the matter has resolved nor have they filed submissions.
3.     The following timetable now applies:
(a)The respondent is to file and serve written submission by 4pm 26 May 2022.
(b)The applicant to file and serve written submission by 4pm 2 June 2022
(c)The respondent to file and serve written submission in reply by 4pm 9 June 2022.”
The parties did not comply with that timetable either but eventually they both provided written submissions (noting that the respondent did not seek to file any submissions in reply) which I have considered carefully and taken into account in making this determination.
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 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

It is noted that the parties have each filed their primary documents and various Applications to Admit Late Documents as set out below. Neither party has objected to the material relied upon by the other and they have each had the opportunity to make any objection, which they did not and the opportunity to address on each other’s late material. In these circumstances all the documents filed by each party are admitted and have been taken into account in making this determination. I note the following documents were in evidence before the Commission:
For Mr Wang:
(a)    Application and attached documents, and
(b)    Applications to Admit Late Documents filed by Ms Diaz on 3 November 2021 and 12 January 2022.
For the respondent:
(a)    Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross-examine.

FINDINGS AND REASONS

There is no dispute that Mr Wang suffered injury in the course of or arising out of his employment as a butcher with the respondent on 15 July 2020 when he lacerated the finger on his dominant hand with a butcher’s night and subsequently underwent emergency surgery.
There is no longer a dispute under section 151A that Mr Wang is precluded from the recovery of compensation by his entry into the deed with the respondent primarily in respect to unpaid superannuation entitlements.
The dispute concerns PIAWE and capacity.
Mr Wang was employed by the respondent as a butcher.
Mr Wang alleges that he worked 60 hours per week and earned $26.50 per hour (which equates to $1590 per week)
The respondent submits that he worked between 40 to 50 hours per week and was paid $26 per hour (which equates to $1040 for 40 hours and $1300 for 50 hours).
The relevant legislation can be found in Division 2 dealing with “weekly compensation by way of income support” of the 1987 Act which provides relevantly as follows:
“Division 2–Weekly compensation by way of income support
Subdivision 1–Interpretation
32A Definitions
(1) In this Division and in Schedule 3—
….
‘first entitlement period’, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.
‘maximum weekly compensation amount’ means the maximum weekly compensation amount under section 34.
‘second entitlement period’, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.
‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.
….
(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’.]’
Subdivision 2–Entitlement to weekly compensation
33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
[Note: Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.]
34 Maximum weekly compensation amount
(1AA) A weekly payment of compensation under this Subdivision is not to exceed the maximum weekly compensation amount.
(1) The "maximum weekly compensation amount" is $1,838.70.
(2) If the amount mentioned in subsection (1)—
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the maximum weekly compensation amount applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.
(3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.
35 (Repealed)
36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
….
Subdivision 3–Work capacity
43 Work capacity decisions by insurers
(1) The following decisions of an insurer are ‘work capacity decisions’ —
(a) a decision about a worker’s current work capacity,
(b) a decision about what constitutes suitable employment for a worker,
(c) a decision about the amount an injured worker is able to earn in suitable employment,
(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
(2) The following decisions are not work capacity decisions—
(a) a decision to dispute liability for weekly payments of compensation,
(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
(3) (Repealed)
43 Work capacity decisions by insurers
(1) The following decisions of an insurer are ‘work capacity decisions’ —
(a) a decision about a worker’s current work capacity,
(b) a decision about what constitutes suitable employment for a worker,
(c) a decision about the amount an injured worker is able to earn in suitable employment,
(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
(2) The following decisions are not work capacity decisions—
(a) a decision to dispute liability for weekly payments of compensation,
(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
(3) (Repealed)”
Schedule 3 deals with earnings for the purposes of weekly compensation under Division 2 of Part 3 of the 1987 Act and relevantly provides as follows:
“Schedule 3 Earnings for purposes of weekly payments of compensation under Division 2 of Part 3
(Section 32A)
1 Application
The words and expressions defined in this Schedule apply for the purposes of Division 2 of Part 3 of this Act.
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.
…
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.
(3) However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.
(4) The Workers Compensation Guidelines may make provision for or with respect to the matters to be taken into account for the purposes of determining whether a benefit has been provided to a worker or whether the worker is entitled to the use of a benefit.
…
8 Meaning of ‘current weekly earnings’
‘Current weekly earnings’, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker’s actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.
9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has ‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has ‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”

Counsel for the applicant also referred to Workers Compensation Regulations Part 4 8A and 8EA regulations dealing with the effect of COVID on earnings.
Counsel for the applicant also referred to section 174 of the 1987 Act, obligations on the employers to maintain wage records as follows:
“174 Records relating to wages, contracts etc to be kept and supplied
(cf former ss 18 (8) (a)–(c), 44 (5))
(1) An employer shall keep correct records of—
(a) all wages paid to workers employed by the employer,
(b) the trade, occupation or calling of each such worker, and
(c) such other matters relating to those wages (or otherwise relevant to the calculation of premiums payable under policies of insurance) as may be prescribed by the regulations.
(2) An employer shall retain any such record in good order and condition for at least 5 years after the last entry was made in the record.
(3) If the regulations so provide, any such record shall be kept in such manner as may be specified in the regulations.
(4) Any such record may be combined with any record of wages required to be kept by an employer by or under any other Act. However, it is not to be combined in such a manner as would prevent its disclosure under any law.
(5) The Authority may order an employer to do either or both of the following—
(a) to supply to the Authority, within the time specified in the order, a full and correct statement of the information required to be recorded by the employer under subsection (1) during a period so specified (being a period during which the record is required to be kept under this section), or
(b) to make available, at such time and at such place as is specified in the order, for inspection by a specified person authorised by the Authority, the records required to be kept by the employer under this section during a period so specified (being a period during which the record is required to be kept under this section), or
(c) to make available, at such time and at such place as is specified in the order, for inspection by a specified person authorised by the Authority, records of a specified kind in the possession of the employer that are relevant to the calculation of premiums payable under policies of insurance or to the determination of whether the employer or another employer is required to obtain a policy of insurance or has paid the correct premium for a policy of insurance.
(5A) The Authority may provide information supplied to the Authority by an employer under subsection (5) (a) to any insurer for the purpose of assisting the insurer to determine whether the correct premium has been paid under a policy of insurance issued by the insurer.
(6) The Authority may, by an order under subsection (5), require information to be supplied to, or made available for inspection by, an insurer who has issued a policy of insurance to the employer and who requests the Authority to make the order for the purpose of determining whether the correct premium has been paid under the policy.
(6A) The Authority may order that a person make available, at a time and place specified in the order, for inspection by a person authorised by the Authority or (at the request of the insurer) by an insurer, any records in the person’s possession relating to any contract (however described) under which the person has made payments to any other person (whether or not an individual) for the performance of work by that other person during such period (subject to subsection (6AA), not exceeding 3 years after the work was performed) as is specified in the order. The order need not name or otherwise identify the person to whom those payments have been made.
(6AA) However, if the Authority is of the opinion that there has been a serious failure to comply with the requirements of this Act by the person to whom the order is to be given, the period specified in the order (or a further order) may be a period not exceeding 5 years after the work concerned was performed.
(6B) An order under subsection (6A) may be made only for the purpose of establishing whether a person is required to obtain a policy of insurance under this Act or for the purpose of determining whether the correct premium has been paid under a policy of insurance.
(7) A person authorised under subsection (5) (b), (5) (c), (6) or (6A) may inspect the records in accordance with the terms of the order and make copies of, or take extracts from, those records.
(8) A person on whom an order is served under this section—
(a) must comply with the order, and
(b) must not wilfully obstruct or delay an authorised person when exercising any power under subsection (7).
(9) In this section—
‘insurer’ means a licensed insurer or a former licensed insurer.
‘wages’, in relation to a worker—
(a) includes salary, overtime, shift and other allowances, over-award payments, bonuses, commissions, payments to working directors (including payments as directors’ fees), payments for public and annual holidays (including loadings), payments for sick leave, value of board and lodging provided by the employer for the worker and any other consideration in money or money’s worth given to the worker under a contract of service or a training contract,
(b) includes payment (whether by way of commission, fee, reward or otherwise) under a contract (whether referred to as a contract, agreement, arrangement or engagement) by reason of which the person paid is deemed by Schedule 1 to the 1998 Act to be a worker, after deducting such amount for costs necessarily incurred by that person in performing that contract as may be agreed on or, in default of agreement, as may be determined by the Authority, and
(b1) includes payments for long service leave (including a lump sum payment instead of long service leave and any payment under the Building and Construction Industry Long Service Payments Act 1986 or the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010), and
(b2) includes a payment made in consequence of the retirement from, or termination of, any office or employment of a worker, being—
(i) a lump sum payment paid before or after that retirement or termination in respect of unused annual leave, or unused annual leave and a bonus, loading or other additional payment relating to that leave, or
(ii) an amount paid in respect of unused long service leave, or
(iii) an amount paid in respect of unused sick leave, and
(b3) includes the amount that is the employer’s fringe benefits taxable amount (within the meaning of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth) in respect of fringe benefits payable to the worker, and
(b4) includes a superannuation benefit, being money paid or payable by the employer in respect of the worker—
(i) to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, or
(ii) as a superannuation guarantee charge within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, or
(iii) to or as any other form of superannuation, provident or retirement fund or scheme, including a wholly or partly unfunded fund or scheme, and
(b5) includes a distribution to a worker as beneficiary under a trust that is required to be included as wages by section 174AA, and
(c) does not include—
(i)–(iii) (Repealed)
(iv) directors’ fees (except to the extent that those fees are payable to working directors and included as wages under paragraph (a)), or
(v) compensation under this Act, or
(vi) (Repealed)
(vii) any GST component in a payment to a worker.
(10) A reference to the Authority in this section includes a reference to the Nominal Insurer. However, an order by the Nominal Insurer under this section may only require information that is necessary for the Nominal Insurer to deal with a claim.
[Note: Maximum penalty—500 penalty units.]”
Turning first to the calculation of PIAWE.
The definition of PIAWE is set out above in schedule 3.
I have to make a determination in accordance with the law and on the evidence before me.
The evidence that would permit a determination on PIAWE tendered from both sides is largely unsatisfactory.
Mr Wang gives evidence that he worked 60 hours a week was paid in cash and was paid $26.50 per hour. This equates to $1,590 per week. He gives evidence there was a downturn in hours worked in early 2020 because of the impact of COVID on the respondent’s business.
The respondent gives evidence that Mr Wang worked between 40 to 50 hours a week and gives evidence that varied as to the hourly rate nominating $22 per hour, an increase to $25 per hour and then that he was paid $26 per hour. The latter equates to $1,040 per week for 40 hours and $1,300 per week for 50 hours. The respondent concedes an impact of COVID in early 2020 because of COVID although by the time of injury in July 2020 business seemed to have recovered.
The respondent has provided no payslips that predate injury. Whilst it is common ground that Mr Wang did not return to work for the respondent after injury, four payslips have been provided by the respondent which on their own admission were brought into existence after the date of injury and are backdated. This dearth of payslips or other wages records occurs despite Mr Wang having worked for the respondent for some two years prior to injury.
There are no tax records for the relevant period tendered into evidence by either party.
There is no evidence before me that in the relevant period tax was withheld by the respondent or that taxable income was declared by Mr Wang.
Both sides appear to seek to blame the other for any breaches of the tax legislation.
There are obligations on both employers and employees to comply with tax legislation and to declare to the tax office income paid and income earnt. There is no evidence before me that either party has complied with their obligations under the Federal taxation laws. As such there are no taxation records or wage records in evidence to assist the Commission in the calculation of PIAWE.
Mr Wang submits that I should determine PIAWE on the basis of monies deposited into his Commonwealth Bank account. He submits I should take into account that this was not the entirety of the wages earned by him because he would make these deposits after he deducted “pocket money” of an unspecified amount. His submissions also refer to this being a net amount and that I should add an allowance of some 20% for tax withheld/paid on income earnt. Given it appears tax has never been withheld by the employer or income declared by Mr Wang it is not entirely clear why I should be persuaded that the deposits in the Commonwealth Bank should be treated as “net” amounts. On any pragmatic view of the evidence it seems that the arrangement between the parties was payment in “cash” without records. Nor is there any evidence of the quantum of monies that Mr Wang says he deducted from his wages as “pocket money” prior to bank deposit.
The respondent submitted that Mr Wang was paid $26 an hour which is approximately the award rate payable for a butcher. The evidence from Mrs Shen is that he worked up to 50 hours a week. This equates to $1,300 a week.
In this unsatisfactory evidentiary situation, the best evidence in all the circumstances is the monies deposited in the Commonwealth Bank. This is what Mr Wang says I should use (but with additional calculations). This is what the respondent concedes I can use but with no allowances.
The applicant also referred to the impact of COVID and that the regulations specifically provide for this circumstance as set out above.
The respondent says the figure for PIAWE that should be adopted is $1,378.44. This is calculated by the respondent by taking the deposits in the Commonwealth Bank for the relevant 52 week period from 15 July 2019 to 15 July 2020 which is said to total $71,679 and dividing it by 52 which gives $1,378.44 per week. The respondent submitted that this is the only figure that can be relied upon with any certainty given the state of the evidence.
I note this equates to $1378.44 per week which is roughly the figure on the respondent’s evidence that would have been paid if they were paying $26 per hour for 50 hours a week which equates to $1,300 per week.
Mr Wang submitted that PIAWE calculated on the basis of the deposits in the Commonwealth Bank would be calculated at a rate of $1,405.58 per week. This calculation is performed by excluding entries from 20 March 2020 to 4 June 2020 as these are Regulations 8 EA (5) entries and including entries from 20 July 2019 to 21 March 2020 and from
13 June 2020 to 13 July 2020 or a total of $57,629 over 41 weeks equating to $1,405.58 per week. This is said to be a “net” weekly figure.
Mr Wang seeks to persuade me that this should be treated as a net figure and then in
Mr Wang’s counsel’s submission “in reverting to tax tables (Furzer Crestani for years 2019 to 2020) that net weekly sum converts to $1892 per week”.
When I weigh all of the evidence in the balance, and given the unsatisfactory state of the evidence I am satisfied that the calculation of PIAWE should be based on the bank deposits as representing the best evidence of what the applicant was paid on average.
I propose to adopt the calculation of the applicant at $1,405.58 per week which takes account of the down turn in earnings and hours worked because of the impact of COVID in part of the relevant 52 week prior to injury.
I am not persuaded that this should be adopted as a net figure and tax tables used to covert it to a higher figure of $1,892 per week. There is no evidence that tax was ever withheld in the two years prior to injury or that income has ever been declared for that period.
Turning then to the question of capacity. Mr Wang submitted he has an ability to earn of not more than $450 per week as a labourer and that this should be appropriately deducted. This is calculated on the basis of his certification of 24 hours per week (6 hours 4 days a week) at $22 per hour. Again no payslips have been provided to support that he earns $22 per hour. Noting that Mr Wang is non-English speaking and performing a labouring role, it is probable that Mr Wang would be earning $22 an hour or roughly the minimum hourly rate for a labourer. The respondent said this capacity should be assessed at $30 to $35 per hour but no basis was given for those figures and I am satisfied that it is more likely than not that Mr Wang would earn the minimum hourly rate.
The respondent submitted that there should be an award for the respondent from
September 2021 on the basis Mr Wang could work full time at $30 to $35 per hour.
I am satisfied that the applicant has a current capacity for work of six hours a day four days per week in accordance with his certificates. He is exercising that capacity by averaging three to five days a week work as a labourer in the construction injury. I am satisfied that due to his injury, on the medical evidence, he can’t return to his pre-injury occupation of butchering work given it was his dominant right hand that was injured.
He has obtained work as a labourer in the construction industry and I am satisfied on balance that it is on this basis his capacity should be assessed.
I am satisfied that Mr Wang has a current work capacity of 24 hours per week in some suitable employment as a labourer earning $22 per hour or $450 per week.
This means that Mr Wang should be paid compensation on the basis of a PIAWE of $1,405.58 per week as indexed from time to time. There is to be a deduction of $450 per week for periods when the applicant has a current capacity for work and no deduction for periods when it is agreed he has no current capacity for work. This results in orders as follows:
(a) under section 36 from 15 July 2020 to 13 October 2020 at the rate of 95% of PIAWE of $1,405.58 per week;
(b) under section 37 from 14 October 2020 to 15 April 2021 at the rate of 80% of PIAWE of $1,405.58 per week;
(c) under section 37 from 16 April 2021 to date and continuing in accordance with the provisions of the Act at the rate of 95% of PIAWE less $450 per week;
(d) the respondent is to have credit for payments already made, and
(e) the PIAWE rate referred to above is subject to indexation in accordance with the provisions of the 1987 Act.

[2022] NSWPIC 441

5 August 2022