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[2004] SAWCT 1
General information, not legal advice.
Workers Compensation Tribunal (SA)
2004-01-22
Original judgment source is linked above.
1
This is a case in which I delivered the original judgment on liability on 29 September 2003. The question of average weekly earnings was left open because there was not then material in front of me. It ultimately was argued on 17 October 2003 and I delivered a judgment on 8 December 2003, and that's reported at [2003] SAWCT 133.
2
The short history is that the applicant has had quite a serious injury to her knee. She is a highly-trained nurse, that is to say she has not only her original basic nursing qualifications but she has a number of quite impressive postgraduate qualifications. I infer from that, because she has these postgraduate qualifications and also from the evidence in the original case, that she was astute in following her profession. Such persons are very valuable within the parameters of elderly and dementia nursing which is becoming an increasingly important aspect of the management of elderly people in our society.
3
I formed a very favourable view of the applicant when she was in the witness box. It seemed to me that she was a woman who was quite devoted to following the profession in which she had trained. She had taken leave without pay and she had done extra courses at Glenside Hospital, which you would hardly think that you would do unless you were dedicated to the profession.
4
She had a series of knee injuries in the early 1990s. The dates do not really matter. They are in the judgments. She fell under the knife of Mr Menz, orthopaedic surgeon, and in September 1993 he carried out various procedures.
5
We know that her average weekly earnings then, were defined as $626.89. That is found at TB 408. Now, arguably, as I have put at various places in my judgment perhaps in a very diffuse way, when she did get back to work she was entitled thereafter to weekly earnings in accord with s 4. I suspect that she was not working full-time. It may be she was also entitled to a make-up. There is no evidence that that make-up was ever paid.
6
She continued in the employ of Masonic Homes until April 1999 when for a variety of reasons she left their employ.
7
The make up claim for that period is not pressed at this stage. It is, in my view, open to her advisers to press that at a later stage.
8
After April 1999, she worked for the Elderly Citizens Homes organisation until December 2000 when she became totally incapacitated in the context of what I have said in my judgment.
9
Now, what are her average weekly earnings? I think that by applying Marina's case one has to take the relevant date for the purposes of s 4 as being 15 September 1993 or thereabouts. I have more or less said that at pars 13 and 14 of my judgment 133 of 2003.
10
The delay since that judgment has been occasioned by trying to find out exactly what the actual appropriate figure is. An affidavit has now been filed by the Human Resources Manager of Masonic Homes, Patricia Anne Sinclair. The affidavit is dated 15 December 2003 and will be marked as exhibit R1.
11
That has got a number of scenarios. The two most important are assuming that she worked 32 hours per week, and assuming that she worked 38 hours per week. As a precursor to that it is important to realise that immediately prior to her terminating her employment with Masonic she was working 24.5 hours a week. The records are unclear about this because they must have been lost. In fact, at one stage in the hearing I was told that a lot of these records in the early 1990s have disappeared. I infer that the $626.89 NWE at 15 September 1993 was for a 38 hour week.
12
The figure itself in 1993 seems to me to be a full week. Whether it is a 32 hour week or a 38 hour week I am not certain.
13
I am going to infer in the applicant's favour that it was a 38 hour week. Therefore, what the applicant is entitled to if she was pressing the claim after April 1999 would be a gross wage of $789.26 less 20 per cent.
14
As from December 2000 when she became totally incapacitated she would be entitled to $820.80 according to schedule 1 of Ms Sinclair's affidavit.
15
$820.80 is something of a guess, but it is the best I can do on the evidence before me.
16
Mr Kernot has made various calculations by taking $626.89 in 1993 and increasing it by what he suspects the CPI increases would have been, and he comes to a figure around about that mark.
17
I do not know whether the NWE on 15 September 1993 of $626.89has got the 80 per cent off it, or whether it is a 100 per cent figure. For the purposes of this present calculation Mr Kernot does not object to my taking $626.89 as a 100 per cent figure.
18
Mr Kernot concedes that his client is entitled to no more than the 80 per cent figure. That comes to $656.64 at December 2000.
19
As against that, Mr Schroeder properly draws my attention to the fact that there is some evidence that the applicant worked long hours in some jobs and shorter hours at other times. That was particularly so at ECH in the very last month or so of her employment there. He said that he is not aware of the reason, but the variation in hours may well be explicable on the basis of the availability of work.
20
It does not follow as if it were mathematical logic, that the applicant was not working full hours simply because of the injury, and the injury alone. There may have been other factors.
21
I accept that that is one approach, and it is legitimate for Mr Schroeder to put it and he puts it properly.
22
However, I am not persuaded by it because of this applicant's demonstrated character and her attainments and achievements in the nursing profession.
23
I am prepared to assume from my general knowledge of the nursing profession and what happens in hospitals that, particularly in the area of the nursing of elderly and frail people, nurses with higher qualifications that fit exactly into the parameters of what organisations like Masonic Homes and ECH and Southern Cross Homes et cetera are doing, that if a nurse has higher qualifications relevant to their operations, the chances are that such a person would not have any trouble picking up work.
24
So I am going to assume that she would have worked 38 hours a week.
25
Frankly, I think she probably would have worked more hours per week. One does not have to have much acquaintance with the hospital system these days to realise that there is a shortage of nurses.
26
Therefore I am going to assume that had it not been for the injury and if she had not been disabled within the terms of s 4(1), that she would have worked 38 hours a week.
27
Therefore the average weekly earnings for this applicant from December 2000 should be fixed at $656.64.
28
I make that order and I order that the respondent pay the costs of the applicant.
29
Because I have a discretion on costs I order that the proceedings from 17 October 2003 onwards be treated as a separate set of proceedings and not just simply as a spillover from the first set of proceedings, so that no diminution in costs should apply.
30
Mr Kernot: Could your Honour's order just note that that figure of $656.54 represents, of course, after reduction by 20 per cent?
31
Yes. That $656.64, is arrived at after the 20 per cent reduction. It is 80 per cent of the AWE.
32
These matters are always, as Mr Schroeder points out, matters that require a certain amount of retrospective speculation. I am just doing the best that I can on the evidence that can be put before me. In a more perfect world with better records the accurate figures might have been found. If anything, I am concerned that the figure is too low, not that it is too high.
33
The order is that the AWE be set at $656.54 being 80 per cent of the NWE.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
Monsma
Masonic Homes Inc and Elderly Citizens Homes of SA Inc [2004] SAWCT 1