Wilson v Ascott Sales Integration Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPIC 579
APPLICANT:	Sally Anne Wilson
RESPONDENT:	Ascott Sales Integration Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	17 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; dispute is in relation to the calculation of pre-injury average weekly earnings (PIAWE); clause 8C of the Workers Compensation Regulation 2016 considered; Held – clause 8C applies; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The relevant earning period for the calculation of pre-injury average weekly earnings should be adjusted to commence on 30 October 2021. 2. Pre-injury average weekly earnings as at 22 April 2022 was $740.19, and thereafter adjusted with indexation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Sally Anne Wilson (the applicant) was employed by Ascott Sales Integration Pty Ltd, also known as IQVIA, (the respondent) on a casual basis as a registered nurse.
In October 2012 she was employed by YourHealth as a registered nurse and clinic manager on a part time basis of 32 hours per week.
On or about 7 November 2017 the applicant claimed workers compensation for a left thumb injury, later both thumbs, as a result of the nature and conditions of her employment with YourHealth. The claim was accepted by GIO, the workers compensation insurer at the time.
In about November 2018, the applicant commenced employment with the respondent. This was a casual role with intermittent and irregular shifts dependent on demand.
On 10 October 2019 the applicant commenced working for Nature Care as a registered nurse on a casual basis of one day per week. She also continued to work concurrently with YourHealth and the respondent.
On 15 December 2020 YourHealth closed down and the applicant ceased working for that employer. At that time the applicant increased her hours of work at Nature Care to 16 hours per week.
On 17 May 2021 the applicant ceased work with Nature Care as her hand was “too painful” and she was not coping with the nature of the work at Nature Care. She told Nature Care that she needed to stop accepting shifts.
A few weeks later, the applicant stopped taking shifts with the respondent for the same reason she stopped accepting shifts with Nature Care. The applicant was struggling with her injury and she knew she was having surgery to her right thumb on 19 July 2021.
On 19 July 2021 the applicant underwent surgery to her right thumb. GIO paid for the surgery, as well as weekly benefits from that time until November 2021. The applicant was totally unfit for work.
The applicant returned to work at the end of October 2021 with the respondent. The applicant thought it was late November 2021, although her payslips indicate it was
30 October 2021. The work with the respondent was very busy with “quite a lot of hours” due to an increase in the number of patients. The applicant did not return to Nature Care as she was too busy with the respondent.
On 22 April 2022 the applicant slipped and fell while working at home for the respondent. She suffered fracture of her left tibia and fibula and a comminuted fracture of her left ankle.
The dispute between the parties is in relation to the calculation of pre-injury average weekly earnings (PIAWE). The respondent argues that the period for calculation of PIAWE is the period of 52 weeks prior to injury with the respondent, that is from 24 April 2021 to
22 April 2022. The applicant argues the period for calculation of PIAWE is from
30 October 2021 to 21 April 2022, pursuant to reg 8C, or in the alternative for two periods,
17 May 2021 to 15 July 2021, and 30 October 2021 to 21 April 2022, pursuant to reg 8B.
This application was the subject of a previous determination by another Member (the original decision), which was subsequently successfully appealed in part by the applicant in the presidential decision of Wilson v Ascott Sales Integration Pty Ltd[1] (the appeal decision). The matter was thereafter remitted to me for redetermination, consistent with the reasons of the appeal decision.
[1] [2024] NSWPICPD 42.

PROCEDURE BEFORE THE PERSONAL INJURY 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.
The applicant was represented by Mr Hanrahan, of counsel, instructed by Ms Kava, solicitor, and the respondent represented by Ms Balendra, instructed by Ms Thomas, solicitor, at the conciliation/arbitration hearing of this matter on 26 September 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached index.

Written submissions

The applicant provided written submissions dated 7 February 2023 and 3 March 2023. The respondent provided written submissions dated 16 February 2023.

Oral evidence

There was no oral evidence.

REASONS

There was no dispute as to injury.
There was no dispute that the applicant was a casual employee of the respondent. The respondent confirmed in oral submissions that there was no suggestion in this matter that there was more than one contract of casual employment between the applicant and the respondent.
There was no dispute as to the facts in this matter. The applicant’s statement dated
17 November 2022 was not challenged. There was no challenge to the applicant’s consistency or credit. I accept the applicant’s statement, although the payslips in my view identify more precisely her return to work following surgery on 19 July 2021.
The payslips attached to the Application identify that return to work date as 30 October 2021.
It is not necessary to decide as to when the applicant stopped taking shifts from the respondent prior to surgery on 19 July 2021. Submissions were not made in relation to that point. It is probable in my view that the applicant returned to work with the respondent on or about 30 October 2021, after an extended period of time off, from at least 19 July 2021.
The respondent provided no evidence in its own case. It relied upon the applicant’s statement and its submissions in relation to regs 8B and 8C.
It is necessary to deal with a preliminary issue. The applicant sought to rely upon reg 8B, as well as reg 8C. Reliance upon reg 8B was opposed by the respondent.
In this regard, the applicant submitted that the original decision did not adequately deal with reg 8B and 8C, and that is what was said in the appeal decision.
It was submitted that the full extent of the applicant’s argument with respect to reg 8B was not adequately dealt with in the original decision, and the appeal decision accepted the correctness of the original decision on the basis of the operation of cl 2 of schedule 3 of the Workers Compensation Act 1987, but went no further. It was submitted that the original decision did not provide a reason beyond that involving the text of reg 8B, and therefore the full extent of the applicant’s argument was not decided in the appeal decision, and therefore remained to be considered.
The respondent submitted that the appeal decision considered the applicant’s submissions in relation to the original decision and reg 8B and found in favour of the respondent. The applicant now wishes to agitate matters that should have been agitated in the appeal, it was submitted. It was submitted that the appeal decision comprehensively examined the appeal submissions and the applicant should not have a further opportunity to make further submissions in this regard.
In the appeal decision, it was relevantly stated:[2]
“The appellant makes a specific argument based on subcl (1) of Reg 8B(1), that the Regulation should be interpreted as if the word 'continuously' were read into it, so that it provides:
‘The relevant earning period for a worker a in employment is to be adjusted in accordance with this clause if the worker was not engaged continuously in the employment from the beginning of the unadjusted earning period.’
The Member's reasons on Reg 8B were short. The Member referred to the appellant's argument that, where a worker is a 'casual', the "PIAWE should be based on only the most recent period of employment at the time when the injury occurred". He rejected the correctness of this, on the basis that cl 2 of Sch 3 to the 1987 Act provided otherwise. He additionally said that the regulations did not provide for such an approach. The Member's reasons on this issue were succinct, but they did deal with the appellant's argument going to Reg 8B. The appellant's submission, on reading words into Reg 8B, did not proffer a reason for this beyond that involving the text of Reg 8B. To this extent, that argument was dealt with.”
[2] [112]-[113].
I do not accept the applicant’s submissions in respect of reliance upon reg 8B.
The appeal decision considered the applicant’s submissions in this regard at paragraphs 37 and 107-113. Any further submission, or the full extent of the applicant’s argument, was not identified. Even if there were further submissions possible, this was not identified on appeal. The only possible further submission that was possible before the appeal decision was at paragraph 20 of the applicant’s submissions in the original decision. This was not raised on appeal, and in any event, that submission (at paragraph 20) was premised upon the submission that was determined in the original decision, for which no error was found in the appeal decision, as outlined above.
Further, in the original decision there was a determination, with respect to reg 8B, against the applicant. That aspect of the original decision was appealed by the applicant, among other matters. The appeal decision found no error in the original decision, and hence found against the applicant in this regard. The appeal decision is final and binding, to the extent required by legislation.[3] I note that the matter was remitted to me for re-determination, consistent with the reasons of the appeal decision.
[3] Personal Injury Commission Act 2020, s 56(1).
I decline to permit the applicant to rely upon reg 8B.
Clause 2 of Sch 3 of the 1987 Act relevantly provides, in relation to the definition of PIAWE:
“…(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…”
Division 2 of Part 4 of the Workers Compensation Regulation 2016 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.
(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-
…(b) Clause 8C (Adjustment for financially material change to earnings),”
Clause 8C, also referred to as reg 8C, provides:
“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 a 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.”
In relation to reg 8C, the respondent, in oral submissions, submitted it is necessary to consider first the nature of the employment arrangement. It was submitted that this was found at paragraph 5 of the applicant’s statement, that is her employment with the respondent was “a casual role with intermittent and irregular shifts dependent on demand.” It was submitted that the alleged change in employment arrangements was described in paragraph 11, in which the applicant said she returned to work in November 2021 “with quite a lot of hours, due to an increase in the number of patients”.
It was submitted by the respondent that the change referred to in paragraph 11 of the applicant’s statement was entirely within the employment arrangement, which was a casual role with intermittent and irregular shifts depending on demand. The number of shifts rises and falls with demand, it was submitted.
It was submitted by the respondent that this could not be a change of an ongoing nature to the employment arrangement, because the employment arrangement had remained the same for both before and after November 2021, that is a casual role with shifts that were determined by changes in demand.
In written submissions, the respondent submitted the above, and also submitted that at no material time did the applicant resign her employment, nor did she seek to re-apply for her position with the respondent. It was submitted that the applicant’s payslips reflected the continuity of her status.
I do not accept the respondent’s submissions in relation to payslips and continuity of the same employment arrangements. There were no payslips of the respondent before me for the period 17 July 2021 to 20 October 2021. It is the case that the payslips of the respondent stated, under the heading “Payroll Advice”, “16/04/2021 To 22/04/2022”. However, those words were not explained, and did not form part of the main body of the payslip, in which specific pay periods and amounts were identified.
Further, the payslip for the payment date of 5 November 2021, in respect of the pay period 30 October 2021 to 5 November 2021, and subsequent payslips, provided an hourly rate of “$0.00”. Employment classification was left blank in the relevant field. “YTD”, which I take to be “Year to Date”, in that payslip provided for various payment amounts and deductions, with current amounts being the same as YTD amounts. The subsequent payslip of
11 November 2021 identified YTD amounts which were more than the current payment amounts, and which included the current amount and the amount from the payslip of
5 November 2021.
Thus, for example, in the payslip of 5 November 2021 the current amount for “additional clinic time” of type “Wages” was $31.50 and the YTD for the same item was $31.50; whereas the payslip of 11 November 2021, for the same item and type, the current amount was $15.75, and the YTD was $47.25. I take the YTD amount of $47.25 to represent the total of $15.75 and $31.50 for each of the pay periods noted above. The same analysis applies to the other listed items in the payslips discussed above.
In my view, the payslips of 5 November 2021 and 11 November 2021 provide strong support for a financially material change in earnings. As the applicant submitted, her wages with the respondent prior to 19 July 2021 were in the order of $93 per week, whereas her wages after 30 October 2021 were $740 per week. There was also a change of an ongoing nature to the employment arrangement, in that there was more than a seven-fold increase in her wages with the respondent, which I infer, from that increase in wages and from the applicant’s statement, as being the result of a significant increase in the applicant’s workload due to a substantial increase in the number of patients. This in my view is well outside the applicant’s initial employment arrangement of intermittent and irregular shifts.
Other than the applicant’s statement, discussed below, there was no evidence before me as to the nature of the employment arrangement with the respondent. There was no document from the respondent, such as a letter of offer of employment, or an employment contract or agreement, if there was one, outlining the nature of the employment arrangement. There was no statement from a relevant officer of the respondent, such as a manager, as to the nature of the employment arrangement in respect of either what was agreed verbally or in writing between the parties in November 2018; or what was discussed, or not discussed, prior to
19 July 2021, or upon the applicant’s recommencement on 30 October 2021.
In respect of the applicant’s statement, the applicant acknowledged casual employment and intermittent and irregular shifts “dependent on demand”. That was the entire description of the initial employment arrangement that was before me. The payslips did not identify job classification or casual status or hourly rates or loadings at any point on the evidence before me.
The applicant did not say whether the employment arrangement that she described was to be on a continuing basis, or for how long that arrangement would continue, how it would cease or be re-negotiated or re-commenced. As noted above, there was no evidence from the respondent in this regard, other than evidence to the contrary in the form of payslips for the period commencing about three years after November 2018. At the same time, the evidence was that the applicant continued employment with the respondent on a casual basis until June 2021, and then from 30 October 2021.
In my view, there is insufficient evidence to support the respondent’s argument that the employment arrangements were continuous and sufficient to encompass an increase in shifts in November 2021, such that reg 8C is excluded. The applicant’s statement does not support that contention. The respondent’s payslips do not support that contention.
In my view the circumstances support the applicant, notwithstanding a lack of detail in her statement in this regard. In particular, the chronology that I have identified under the heading “Background” above assists in my consideration. The applicant was obliged to decline shifts with the respondent at some time before 19 July 2021 due to her prior injury. She underwent surgery on 19 July 2021. She was then off work, and in receipt of weekly benefits in respect of that prior injury, until 30 October 2021. The applicant returned to work with the respondent with a substantial increase in workload.
Although there was some similarity between the applicant’s description of shifts in relation to demand in November 2018 and becoming busy in November 2021 due to an increase in patients, nevertheless there was a substantial change in the applicant’s circumstances in the intervening period of about three years, as noted above, particularly in relation to the period following 19 July 2021, when she eventually resumed work on about 30 October 2021 and thereafter.
The applicant in written submissions argued that there were two discrete casual engagements. The respondent in written submissions took issue with this submission. When considered with the applicant’s oral submissions, and consistent with argument put in oral submissions, I do not understand that the use of the word “engagement” means a separate period of employment. Rather, I understand it to refer a distinction between periods to which there was a difference in employment arrangements. In my view, the employment arrangement from 30 October 2021, other than being on a casual basis, was a different employment arrangement from that entered into in November 2018. This was a change of an ongoing nature to the employment arrangement. As noted above, there was no suggestion that there were two distinct contracts of casual employment.

I accept the applicant’s submissions that there was a significant material financial change from 30 October 2021, that is to $740.19 per week, when compared with her earlier income from 21 April 2021 to 15 July 2021, being $93.35 per week. In my view, my acceptance that the applicant ceased taking shifts with the respondent at some time in June 2021 does not materially alter this conclusion in a dollar amount sufficient to alter the income differential in a significant sense.
A question of causation arises, although it was not expressly dealt with in submissions. That is, did the change of an ongoing nature to the employment arrangement result in a financially material change to the earnings of the worker? In my view that was the case. The change in the ongoing nature of the employment arrangement was the significant increase in patient numbers. This resulted in a financially material change to the earnings of the applicant, from $93 to $740 per week.
In my view, the example provided in reg 8C does not limit the nature and extent of circumstances and arrangements which may come under consideration, and potentially come within its operation. The example was expressed to be no more than that. It was not expressed to be exhaustive or limiting. Reg 8C is in my view beneficial, and it exists within beneficial legislation.
The applicant took me to a number of decisions in other matters in the Commission in relation to reg 8C. It is not necessary to deal with those matters.
In my opinion reg 8C applies in this matter, to exclude the period of employment with the respondent prior to 30 October 2021.
There was no objection to the applicant’s calculation of PIAWE, being $740.19.
There were no submissions in relation to indexation of PIAWE. Indexation of PIAWE is required,[4] and is not controversial.
[4] Section 82A, 1987 Act.

[2024] NSWPIC 579

17 October 2024