Way v Cutting Edge Tree Maintenance Pty Ltd - [2023] NSWPIC 627

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Way v Cutting Edge Tree Maintenance Pty Ltd [2023] NSWPIC 627
APPLICANT:	Craig Way
RESPONDENT:	Cutting Edge Tree Maintenance Pty Limited
MEMBER:	Paul Sweeney
DATE OF DECISION:	23 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; calculation of the current weekly earnings of injured worker who had returned to the workforce as a self-employed uber driver; Cronje v Leighton Contractors Pty Ltd considered and applied; worker’s earnings determined by reference to Passenger Vehicle Transportation Award 2020; Held – award for worker pursuant to section 38.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to his right shoulder arising out of and in the course of his employment on 22 July 2020. 2. As a result of the injury the applicant was totally and partially incapacitated for work and paid compensation until 11 January 2023. 3. From 12 January 2023 the applicant has had a current earning capacity. 4. At all material times the applicant’s pre-injury average weekly earnings were $890 per week. 5. In suitable employment as a driver working 20 hours per week the applicant was able to earn the sum of $459.60 per week from 12 January 2023 to 30 June 2023 and the sum of $486.20 thereafter. 6. Award for the applicant at the rate of $252.40 per week from 12 January 2023 to 30 June 2023 and $225.80 per week from 1 July 2023 to date and continuing pursuant to s 38 of the Workers Compensation Act 1987. 7. Liberty to apply in respect of the above calculations.

STATEMENT OF REASONS

BACKGROUND

Craig Way (the applicant) was formerly employed by Cutting Edge Tree Maintenance (the respondent) as an arborist. On 22 July 2020, the applicant was required to work on the roof of a house at Fennell Bay. When cleaning leaves off the roof with a leaf blower, he fell heavily suffering a severe injury to his right shoulder.
Following the injury, the applicant came under the care of Dr Roy, a general practitioner, who referred him to Dr Jai Kumar, an orthopaedic surgeon, who specialises in treatment of the upper limbs.
On 12 August 2020, Dr Kumar performed surgery on the applicant’s right shoulder at Lingard Private Hospital. The doctor carried out a rotator cuff repair and bicipital tenodesis.
As the applicant experienced continuing symptoms and restriction of movement of his right shoulder following surgery, Dr Kumar carried out a further arthroscopic procedure during which he divided intra-articular adhesions in the right shoulder at the Lingard Private Hospital.
While the applicant obtained substantial benefit from the arthroscopic surgeries, he has been left with ongoing pain and restriction of movement in his right shoulder. In late 2021, the applicant commenced work as an Uber driver. He initially worked 10 to 15 hours per week but gradually increased those hours. The applicant performs the work of an Uber driver on the basis that he is a self-employed driver.
On 30 September 2022, the respondent’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Way v Cutting Edge Tree Maintenance Pty Ltd

Details

AGLC: Way v Cutting Edge Tree Maintenance Pty Ltd [2023] NSWPIC 627
Case: [2023] NSWPIC 627
Decision Date: 23 November 2023

CaseChat Overview and Summary

The case of Way v Cutting Edge Tree Maintenance Pty Ltd involved a dispute between an injured worker and his employer concerning the calculation of the worker's current weekly earnings for the purposes of a workers compensation claim. The injured worker, Mr Way, had returned to work as a self-employed Uber driver after sustaining injuries in an incident at work. The employer, Cutting Edge Tree Maintenance Pty Ltd, sought to determine the worker's current earnings for the purpose of calculating compensation.

The primary legal issue before the court was how to calculate the current weekly earnings of an injured worker who had returned to the workforce as a self-employed Uber driver. The court was required to decide whether the worker's earnings should be determined by reference to the terms of the Passenger Vehicle Transportation Award 2020 or by some other method. The court considered the case of Cronje v Leighton Contractors Pty Ltd, which held that the current weekly earnings of an injured worker should be determined by reference to the terms of an applicable award where the worker is employed in the same or similar occupation.

The court found that Mr Way's current weekly earnings should be determined by reference to the Passenger Vehicle Transportation Award 2020, as he was working in a similar occupation to that of a driver employed under the award. The court applied the principles set out in Cronje v Leighton Contractors Pty Ltd and held that the award provided the most appropriate method for determining the worker's current weekly earnings. The court held that the worker's earnings should be determined by reference to the minimum rate of pay for a driver under the award, adjusted for the number of hours worked by the worker.

In light of the above, the court made an award for the worker pursuant to section 38 of the Workers Compensation Act 1987. The exact amount of the award was not specified in the text.

Orders