by Bailey Lennard and Darran Russell
Watson v Murrays Australia Pty Limited [2021] NSWWCC 9
What is meant by "returned to work for not less than 15 hours per week" or "It is beyond my control"?
The Applicant suffered an injury to his lumbar spine in the course of his employment with the Respondent on 30 July 2018. The Applicant also suffered a consequential umbilical hernia while undergoing rehabilitation exercises for the original back injury.
The Applicant sought weekly compensation benefits pursuant to Section 37 of the Workers Compensation Act 1987 (the 1987 Act).
He submitted that the calculation of his benefits should be considered under Section 37(2) of the 1987 Act. Section 37(2) operates to encourage injured workers to return to work for not less than 15 hours per week by increasing the amount of their weekly benefits when that threshold is met.
Under that subsection, the starting point of the calculation is 95% of his PIAWE (Pre-Injury Average Weekly Earnings). He submitted that subsection should apply as he had returned to work and was working not less than 15 hours per week until the Respondent's business closed due to the impacts of the COVID-19 pandemic. The Respondent submitted that the Applicant's entitlements should be calculated pursuant to Section 37(3) of the 1987 Act, with the starting point being 80% of the PIAWE, as he was working less than 15 hours per week.
Relevant Legislation
Section 37 of the 1987 Act provides for weekly payments during the second entitlement period being weeks 14-130. This section relevantly provides:
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates–
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates–
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
Determination / Reasons
Arbitrator Burge in the Workers Compensation Commission considered that Section 37 of the 1987 Act contains both a temporal element and a requirement that the injured worker is carrying out greater than 15 hours per week of paid work.
If the Applicant was working greater than 15 hours per week at the relevant time, the claim would fall under Section 37(2). If the Applicant was working less than 15 hours per week at the relevant time, then the claim would fall under Section 37(3) of the 1987 Act.
Arbitrator Burge found that an injured worker does not render Section 37 (3) irrelevant to the claim by merely working a single week or period that is greater than 15 hours per week followed with a period of work under that threshold. The Arbitrator accepted that the circumstances surrounding the Applicant ceasing work were out of his control, but said it did not preclude the application of the correct statutory provision.
Arbitrator Burge considered that the calculation of the Applicant's benefits should be determined at 80% of his PIAWE in accordance with section 37(3) of the 1987 Act, less any current earnings. In this case, the JobKeeper payments were his only current earnings. JobKeeper payments are deemed by the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 to be earnings for the purpose of calculating entitlements to weekly benefits.
Implications
This case confirms that an Arbitrator is bound by the application of a statutory provision despite unexpected circumstances beyond the control of the worker. Specifically, it confirms that the impacts of COVID-19 on businesses and subsequently their workers if the business is to shut down, may not be taken into consideration by the WCC in determining whether a worker has returned to work for not less than 15 hours per week.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
