Wood v Qube Logistics - [2022] NSWPIC 466

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Wood v Qube Logistics [2022] NSWPIC 466
APPLICANT:	John Wood
RESPONDENT:	Qube Logistics Pty Ltd
Member:	Paul Sweeney
DATE OF DECISION:	22 August 2022
CATCHWORDS:	WORKERS COMPENSATION - By two work capacity decisions the insurer determined that the worker was capable of working 12 hours per week in selected duties for the remainder of the section 37 period of the Workers Compensation Act 1987 (1987 Act) and was not entitled to compensation in the third entitlement as he possessed a current earning capacity; on a consideration of the matters set out in the definition of suitable employment in section 32A of the 1987 Act; Held — the worker had no current earning capacity; work capacity decisions rescinded; award for the worker pursuant to sections 37 and 38 of the 1987 Act on the basis of total incapacity.
determinations made:	The Commission determines: 1. That the applicant lodge forthwith under cover of an Application to Admit Late Documents the documents exchanged and forwarded to the Member by email at the commencement of the arbitration hearing. 2. That the respondent pay the applicant weekly compensation pursuant to sections 37 and 38 on the basis that he has no current capacity for work from 13 March 2022 date and continuing until this award is terminated or suspended in accordance with the provisions of the Workers Compensation Act 1987.

BACKGROUND

John Wood (the applicant) is 60 years of age. He has worked as a truck driver during most of his working life. On 1 August 2019, in the course of his employment with Qube Logistics Pty Ltd (the respondent), he fell and suffered injury to his left ankle and left wrist. During his convalescence, he also developed a secondary psychological condition. The respondent accepted liability in respect of the applicant’s orthopaedic injuries and paid him compensation on the basis of totalling capacity pursuant to the Workers Compensation Act 1987 (the 1987 Act) until 13 March 2022.
By a work capacity decision dated 8 December 2021, the respondent’s insurer/scheme agent, Employers Mutual Limited (EML) determined that the applicant had a capacity to perform suitable employment for four hours per day three days a week as a medical/ pathology driver, light courier driver, or surveillance monitor. EML determined that the applicant was able to earn the sum of $330 per week in this employment which was suitable employment as that term is defined in s 32A of the 1987 Act.
As a result of the work capacity decision the applicant’s compensation was reduced on
13 March 2022 from $1,328 per week to $998 per week.
Subsequently, on 2 May 2022, EML advised the applicant that it had decided that his weekly payments of weekly compensation would come to an end on 27 June 2022 as by that date he would have received 130 weeks compensation and did not fulfil the special requirements of s 38 of the 1987 Act for receipt of further compensation.

PROCEDURE BEFORE THE COMMISSION

By…

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.

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Details

Case: [2022] NSWPIC 466
Decision Date: 22 August 2022

CaseChat Overview and Summary

The case of Wood v Qube Logistics involved a dispute concerning workers' compensation. The worker, Mr. Wood, was assessed by the insurer to have a capacity for work of 12 hours per week in selected duties for the remainder of the section 37 period under the Workers Compensation Act 1987. The insurer also decided that Mr. Wood was not entitled to compensation during the third entitlement period as he possessed a current earning capacity. Mr. Wood contested these determinations, arguing that he had no current earning capacity. The matter was brought before the court to determine the validity of the insurer's work capacity decisions.

The primary legal issues that the court had to address were whether the insurer's determinations regarding Mr. Wood's work capacity and entitlement to compensation were correct. Specifically, the court needed to assess whether Mr. Wood had a current earning capacity as determined by the insurer and whether the work capacity decisions aligned with the provisions of the Workers Compensation Act 1987. The court also had to consider the definition of suitable employment under section 32A of the Act in its deliberations.

In reaching its decision, the court meticulously examined the evidence presented and the application of the statutory provisions. It found that the insurer's determinations were flawed and did not adequately account for the worker's actual capacity to earn. The court concluded that Mr. Wood did not possess a current earning capacity as defined by the Act. Consequently, the work capacity decisions were rescinded. The court ordered an award for Mr. Wood under sections 37 and 38 of the 1987 Act, recognising him as totally incapacitated for work.

The final orders of the court rescinded the insurer's work capacity decisions and mandated that Mr. Wood be awarded compensation based on total incapacity. The court's decision underscored the importance of a thorough assessment of a worker's earning capacity and the necessity for insurers to align their determinations with the statutory framework governing workers' compensation.

Orders