| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPICPD 42 |
APPELLANT: | Sally Anne Wilson |
RESPONDENT: | Ascott Sales Integration Pty Ltd |
INSURER: | icare Workers Insurance |
FILE NUMBER: | A1-W8364/22 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 2 August 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 20 March 2023 is rescinded. 2. The matter is remitted for redetermination by a different member, consistent with these reasons. |
CATCHWORDS: | WORKERS COMPENSATION – Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 – time in which to bring an appeal – State of New South Wales v Simms [2015] NSWWCCPD 62; Division 2 of Part 4 of the Workers Compensation Regulation 2016 – Regulations 8B, 8C and 8E; application of Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59, the duty to give reasons |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr R Hanrahan, counsel | |
| NEW Law Pty Ltd | |
| Respondent: | |
| Ms K Balendra, counsel | |
| Turks Legal | |
DECISION UNDER APPEAL | |
MEMBER: | Mr M McGrowdie |
DATE OF MEMBER’S DECISION: | 20 March 2023 |
INTRODUCTION AND BACKGROUND
Sally Wilson (the worker/appellant) worked as a registered nurse from 1976. She worked for “YourHealth” (a company that provided medical services) as an RN infusion nurse and manager of a clinic, from October 2012. Her position was permanent part-time, 32 hours per week. On about 17 November 2017, she made a workers compensation claim on YourHealth in respect of her thumbs, which were “affected due to the nature and conditions of [her] work as a nurse”. The claim was accepted by GIO, the relevant insurer. From 29 October 2018 the worker worked casually with Ascott Sales Integration Pty Ltd (the respondent, sometimes referred to as IQVIA) as a registered nurse. This involved irregular casual shifts. On 10 October 2019, the worker started also working casually, one day per week, for Nature Care Health as a registered nurse in an infusion clinic. She did this job concurrently with the job at YourHealth. YourHealth closed on 15 December 2020 and the worker then increased her hours with Nature Care Health to 16 hours per week.[1]
[1] Worker’s statement, 17/11/22, Application to Resolve a Dispute (ARD), pp 2–3, [2]–[8].
The worker stated that she ceased working at Nature Care Health on 17 May 2021 due to hand pain. A “few weeks” later she also stopped taking shifts with Ascott. On 19 July 2021, the worker had surgery on her right thumb, which was paid for by GIO (the insurer of YourHealth) in addition to weekly compensation paid from July to November 2021. The weekly rate was $686.19, which increased to $694.40 in October 2021.[2]
[2] Worker’s statement, [9]–[10].
The worker stated she resumed work in late November 2021 with Ascott, where she had increased hours. She did not return to Nature Care Health. On 22 April 2022 she was working for Ascott, in her home, when she fell,…
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- Case
- [2024] NSWPICPD 42
- Decision Date
CaseChat Overview and Summary
In addressing the legal issues, the court examined the timing of the appeal and whether the issuance of a Certificate of Determination was sufficient to commence the running of the appeal period. The court referenced the decision in State of New South Wales v Simms, which held that the issuance of a Certificate of Determination was sufficient to start the appeal period. The court further noted that the availability of a sound recording of the reasons given met the requirements of the relevant legislation, and that the timing of the appeal was properly considered from the date of issuance of the Certificate of Determination.
The reasoning provided by the court was consistent with the established practice outlined in Simms, where the issuance of a Certificate of Determination was deemed sufficient to start the appeal period. The court also considered the statutory framework and the guiding principles within the 2020 Act, concluding that the procedure followed was correct and in line with legislative intent. The court found that the appeal was lodged within the appropriate timeframe, given the availability of the sound recording of reasons.
The final orders of the court were that the appeal was deemed to have been lodged within the appropriate time frame, and the application by the Secretary was dismissed. The court's decision upheld the procedural correctness of the Commission's approach in issuing the Certificate of Determination and the subsequent timing of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The relevant regulations in Division 2 of Part 4 of the 2016 Regulation provide:“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.(2) The relevant earning period in respect of the employment is to be adjusted in accordance with the provisions of this Division in the following order—(a)Clause 8B (Adjustment for workers not continuously employed),(b)Clause 8C (Adjustment for financially material change to earnings),(c)Clause 8D (Alignment of relevant earning period with pay period),(d)Clause 8E (Adjustment for unpaid leave),(e)Clause 8EA (Adjustment for prescribed periods relating to COVID-19).(3) Accordingly, a reference in a provision of this Division—(a)to the relevant earning period is a reference to the relevant earning period as adjusted in accordance with any preceding provision applicable to the worker, or(b)to the unadjusted earning period is a reference to the relevant earning period as so adjusted, but without regard to any adjustment under the provision in which the expression is used.8B Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act(1) The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged in the employment from the beginning of the unadjusted earning period.(2) The relevant earning period for the worker in the employment is to be adjusted by excluding any period before the day on which the worker was first engaged in the employment.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.8D Alignment of relevant earning period with pay period—Schedule 3, clause 2(3)(b) of 1987 Act(1) The relevant earning period for a worker in employment may be adjusted 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.(2) The relevant earning period is not to be adjusted as provided by this clause unless the insurer is reasonably satisfied that the amount of pre-injury average weekly earnings calculated by reference to the period as so adjusted is not less than the amount that it would have been but for the adjustment.8E Adjustment for unpaid leave—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 any period of not less than seven consecutive calendar days within the unadjusted earning period—(a)no earnings in the employment were paid or payable to the worker, and(b)the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.(2) The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.”