Yan v Axis Commercial Pty Ltd

[2024] NSWPIC 539

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Yan v Axis Commercial Pty Ltd [2024] NSWPIC 539

APPLICANT:

Changjun Yan

RESPONDENT:

Axis Commercial Pty Limited

MEMBER:

John Wynyard

DATE OF DECISION:

1 October 2024

CATCHWORDS:

WORKERS COMPENSATION - Work capacity dispute; claim that pre-injury average weekly earnings greater because applicant worked for cash doing additional gyprocking work to that he earned whilst working for the respondent; claimant unable to support that assertion; tax records unhelpful; Held – work capacity decision confirmed.

DETERMINATIONS MADE:

The Commission directs:

1.     The work capacity assessment is confirmed.

Short Reasons

1. Mr Yan objected to a work capacity assessment which assessed his pre-injury average weekly earnings at $812.50 for the relevant period 31 May 201 to 29 May 2022.

2. In a statement dated 22 August 2024 Mr Yan said that he did some work that was recommended by his friend as a gyprocker in addition to his employment with the respondent.   He alleged that he made the following amounts:

   (a)27 March 2022 paid $2,500 for extra work, cash

   (b)23 April 2022 he was paid $1,200 for extra work, cash

   (c)22 May 2022 he was paid $1,600 for extra work, cash

   (d)5 June 2022 he was paid $1,500 for extra work, cash

3. Mr Yan had no independent corroboration for receipt of that cash but he sought a review of the work capacity assessment on the basis that with the inclusion of those cash earnings his PIAWE would have been $1,069.23 pw rather than $812.50 pw.

4. There were some tax assessments lodged and in his submissions Mr Zheng, who appeared for Mr Yan, relied on the Notice of Assessment for the year ended 30 June 2021 which is at page 12 of the Application to Admit Late Documents lodged by the respondent dated 18 September 2024. That showed that Mr Yan’s taxable income for that year had been $50,637.  

5. Regrettably the income return for that year was not lodged and it was not possible to see how that income had been earned.

6. Mr Zheng submitted that I could draw an inference that it was earned by receipt of extra cash.  However, the receipt of the $50,637 was not within the relevant period, and without any proof of how that income was earned, I had great difficulty in accepting that I could properly make that inference.

7. Mr Zheng referred me to Mr Yan’s PIAWE calculation at page 17 of the Application which showed that in the previous year, Mr Yan had earned $21,000 working for the respondent, which within the relevant period amounted to $1,500, and with the adjustment for two weeks off came to the claimed amount of $1069.23, as I understood the submission.  

8. However the figures do not appear to bear any relationship to the $50,637 Mr Zheng was relying on to establish independent support for the fact that Mr Yan had received that additional cash income over that six month period. 

9. In the circumstances I was unpersuaded that the PIAWE should be amended as sought.