The applicant referred to the decision of Clarke in support of that submission. The error with that submission is that the worker in that case was seeking an order for weekly compensation in respect of a past period, some 12 months prior to the order of the Commission. Accordingly, the operation of the s 38 entitlement was then discussed in the context of a period prior to the date of the order.
The applicant is seeking an order of weekly compensation over a period on an ongoing basis. In those circumstances a worker is required to satisfy the test over the entire period and not only when the notice was given. Accordingly, if a worker cannot satisfy the test for part of the period, then that portion of the claim would fail because a necessary precondition is not satisfied.
That interpretation is also consistent with the ongoing nature of the requirement provided by s 38(3)(b), subject to the operation of s 40, that a worker must be in employment for at least 15 hours per week and at least the minimum value as prescribed by the regulations.
97. This interpretation is also consistent with s 38(8) of the 1987 Act which provides that the assessment under s 38 "may be reassessed at any time". That sub-section indicates that satisfaction of the pre-conditions in s 38(3) may fluctuate over time."
In my view the evidence supports that the applicant is incapable, and likely to continue indefinitely to be incapable of undertaking further additional employment or work that would increase his current weekly earnings. There is no evidence that the applicant will ever be able to return to his pre-injury duties even with the shoulder replacement surgery.
It was submitted on behalf of the respondent that the applicant's payslips attest to his ability to work in excess of the hours certified in the Certificates of Capacity and as assessed by

Ms Vidaic in the Functional Capacity Evaluation Report dated 21 February 2024. It was further submitted on behalf of the respondent that the applicant's actual earnings with Affordable Asphalt do not represent the applicant's actual capacity for work as the applicant's hours are based on the needs of his employer. 7. As previously discussed, the applicant's current capacity is irrelevant to the operation of s 38(3)(c) as this is taken into consideration in assessing the applicant's "current weekly earnings". 8. The respondent also referred to the response from the Healthy Body Company to a questionnaire on 11 March 2025 which indicated an increase work capacity to 34-38 hours per week by the end of next "AHTR Plan." I give little weight to this evidence. The response to the questionnaire provides no explanation or reasoning for the opinion. It does not explain how or why the applicant's capacity would increase in terms of the hours that the applicant could work. It also does not identify the nature of the occupations which the applicant would be able to perform 34 to 38 hours per week and whether those occupations are in fact "suitable employment" as defined by s 32A of the 1987 Act. There is no "AHTR Plan" in evidence and nothing further from the Healthy Body Company in evidence. It is not known when the "AHTR Plan" was to end or what the progress was. We also do not know who the author of the opinion was and what their qualifications were as there is not recorded on the response. 9. We do however know from the applicant's payslips that the applicant has on occasions since 11 March 2025 worked in excess of 34 hours per week for his current employer. There is no evidence from the Healthy Body Company that there is to be any future change (from this point in time) in the applicant's capacity to undertake further additional employment or work that would increase his current weekly earnings. 10. The respondent also relied on the report of Mr Brown, of Brown and Ross Exercise Physiology dated 29 April 2025. Again, this report provides an assessment of the applicant's current functional capacity. Whilst further small improvements in the applicant's functional capacity were anticipated no opinion was provided as to whether or how those small improvements would affect the applicant's work capacity. 11. Whilst the respondent also relied on Dr Ibrahim's approval of the occupations of Courier - light items (Pathology/medical courier), Delivery Driver - light items with a maximum of 5kg per item, Transport Dispatching and Receiving Clerk and Warehouse Administrator and Sales Assistant, this approval was given on 23 April 2024 and does not indicate any future change in capacity that would increase the applicant's "current weekly earnings". 12. For the above reasons I am of the view that the evidence supports that the applicant is incapable and is likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase his current weekly earnings

The applicant bears the onus of proving incapacity resulting from the accepted injury on the balance of probabilities. What is required is a commonsense evaluation of the causal chain.[13] Once the applicant has proved an incapacity the respondent bears the onus of proving the residual capacity.
Section 33 of the 1987 Act states:

"33 Weekly compensation during total or partial incapacity for work

If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues."

Clause 9 of Schedule 3 of the 1987 Act defines "current work capacity" and "no current work capacity" and states:

"9 Meaning of 'current work capacity' and 'no current work capacity'

(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.

(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment."

There is no dispute that the applicant is incapacitated for his pre-injury duties. There is no evidence which supports the applicant having a current capacity to perform his pre-injury duties.
In respect to the issue of capacity the respondent submitted that it relied on the work capacity decision dated 21 June 2024. In the respondent's submission, based on the work capacity decision, the applicant has the capacity to earning $768 per week in suitable employment. In the respondent's submission based on the agreed indexed PIAWE of $1,570 applying s 38(7)(a) the applicant would have an entitlement to weekly compensation at the rate $488 per week ($1,570 x 0.8 = $1,256 - $768 = $488). In the respondent's submission a deduction would then be made for amounts earned in the applicant's current employment in excess of $768 per week.
It is the applicant's evidence that his current employer has been very accommodating with respect to his workplace injury. That his job is casual, and the hours he works depends on the needs of his employer. Also, due to the outdoor nature of the work, tasks may be cancelled in bad weather.
Ms Vidaic in the Functional Capacity Evaluation Report dated 21 February 2024 records that following a functional capacity evaluation on 21 February 2024 the applicant was assessed to have the capacity to commence with eight hours per day, three days per week at light work with the applicant demonstrating a capacity to lift 7kg bilaterally from floor to waist and 4kg from waist to chest level with his right hand, unilaterally carry 4kg with his right had for one minute, push with his right hand 4.55kgF and pull with his right hand 11.2kgF. The applicant was to avoid overhead activity with his right arm.
The Functional Capacity Evaluation Report does not actually identify any suitable vocations for the applicant but rather recommends that an updated vocational assessment be conducted to identify suitable alternative employment options. No such updated vocational assessment is in evidence.
In evidence is the response by Dr Ibrahim to a questionnaire from Acumen Health dated

23 April 2024. In the doctor's opinion the applicant had a maximum capacity to return to full hours but with limited use of the right shoulder. 7. It is unclear whether Dr Ibrahim was of the opinion that the applicant could perform full hours in the roles which the doctor was then asked to approve or reject as suitable as the questions were put separately and the doctor's response that the applicant could work full hours is given in response to a question about the applicant's maximum capacity and not in response to the individual roles. 8. The individual roles identified and put to the doctor as potential suitable occupations presumably were derived from Vocational Assessment Report and Labour Market Analysis authored by Acumen Health dated 23 April 2024 which is referred to as an attachment to the work capacity decision, but which is not in evidence. 9. Presumably the roles which were put to Dr Ibrahim as potential suitable occupations were identified on the basis of the functional capacity assessment which assessed a capacity to work 8 hours per day, 3 days per week on light work. Therefore it was not necessary to ask Dr Ibrahim to comment on the hours which the applicant could work in the identified occupations. Dr Ibrahim approved the roles of Courier - light items (pathology/medical courier), Delivery Driver - light items, Transport Dispatching and Receiving Clerk, Warehouse Administrator and Sales Assistant. Whilst the doctor was provided with brief descriptions of the functional requirements of the roles the actual weights involved were not provided. 10. In any event on the basis of the functional assessment performed by Ms Vidaic the applicant has only been assessed as able to work in the roles approved by Dr Ibrahim eight hours per day, three days per week which according to the work capacity assessment the applicant could earn $768 per week. 11. The Functional Capacity Assessment Report and the questionnaire completed by Dr Ibrahim is of little assistance as significant pieces of evidence as to the identification of the suitable roles are not in evidence and the applicant is, with his current employer, working in excess of the 24 hours per week assessed by Ms Vidaic. 12. I am of the view, as submitted by Mr Stanton on behalf of the applicant, that the best available measure of the applicants work capacity is his actual average earnings with his current employer. The hours worked are similar to those assessed by Ms Vidaic. The applicant has a limited education, has no trade or other qualifications, has an employment history in labouring and truck duties which are no longer suitable given his injury. To the applicant's credit he has managed to find light suitable duties employment which he is able to perform for an employer who has been very accommodating with respect to his workplace injury. 13. Whilst it is the applicant's evidence that his hours are determined by the needs of his employer, and he has at times worked up to and in excess of 38 hours per week the functional assessment which the respondent relies upon only assessed the applicant as capable of working 24 hours per week and there is no assessment assessing that the applicant could work full-time duties in a real job or even that he would be able to work full-time duties in his current position on an ongoing and continuous basis. The applicant has proved incapacity; it is the respondent that bears the onus of proving the extent of the residual capacity. 14. In any event the residual earning capacity which the respondent submitted of $768 is less than that submitted by the applicant of $770 per week on the basis as the applicant's average weekly earnings with his current employer. For the above reasons I accept the respondent's submission that the applicant has a capacity to earn of $770 per week. As this is taken as an average it is not necessary, in respect to the past payments of weekly compensation, to reduce the amount of weekly compensation in respect to those weeks when the applicant has earned in excess of $770 or similarly to increase the weekly compensation payable when the applicant has earned less than $770 in any given week. 15. The parties agreed the applicant's PIAWE indexed at $1,560 as at 17 January 2025 and $1,570 indexed as at 1 April 2025. I calculate the applicant's entitlement weekly compensation pursuant to s 38(7)(a) of the 1987 Act as follows:

(a) $478 per week from 17 January 2025 to 31 March 2025, and

(b) $486 per week from 1 April 2025 to date and continuing subject to indexation.

[13] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.

Compensation Act 1987

Injury Management and Workers Compensation Act 1998

Deitz v Macarthur Fresh Wholesalers Pty Ltd [2025] NSWPIC 345; (17 July 2025)

Section 38(3)(c) requires the worker to be assessed as "being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings."
In Roberts v University of Sydney [2021] NSWWCC 25 (Roberts) Arbitrator Harris (as he then was) considered the meaning of "indefinitely" for the purposes of s 38(3)(c) stating:

Member Wynyard adopted the interpretation of Arbitrator Harris in Holmes v Central Coast Council [2022] NSWPIC 70 (Holmes) as did President's delegate McAdam (as he then was) in Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated [2023] NSWPIC 36 (Houghton). I also agree with and adopt the interpretation in Roberts.
In considering s 38(3)(c) it is also necessary to consider the definition of "current weekly earnings". Clause 8 of Sch 3 of the 1987 Act provides the following definition of "current weekly earnings":

Deitz v Macarthur Fresh Wholesalers Pty Ltd [2025] NSWPIC 345;

At a glance

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Deitz v Macarthur Fresh Wholesalers Pty Ltd [2025] NSWPIC 345; (17 July 2025)