Somerset v Schefenacker Vision Systems Pty Ltd

4 That having occurred I delivered a further judgment in this matter on 18 July 2001. I decided, firstly, that the worker's notional weekly earnings for the purposes of calculating her entitlement to weekly payments of income maintenance had to be reckoned by reference to the amount that she was earning at the date of the commencement of her incapacity, namely 1 May 1991. This figure was considerably higher than the amount that the worker was actually earning at the time of her claim for compensation.

5 Secondly, I found that in determining the amount of weekly payments to which the worker was entitled, I was obliged to take into account the amount that she could earn by way of suitable employment. I found that she was capable of working as a Level 1 Clerk. I found that the wage payable for that employment was $454.70 per week. Accordingly, I concluded that the worker was entitled to 80 per cent of the difference between her notional weekly earnings and that amount.

6 The issue that I left unresolved at that time was whether I should base the subsequent calculations simply by reference to the average weekly earnings that the worker was earning as at 1 May 1991 or whether that amount should be adjusted pursuant to s 39 of the Act to take into account wage movements since that date.

7 The employer contends that I should do the former. It does not influence my approach to this case but I simply record that if I were to do so the worker would have no actual entitlement to weekly payments.

8 Mr Mellows, for the employer, submits that in line with various authorities of the Workers Compensation Tribunal, it is clear that s 39 does not provide a general mechanism by which to revisit the calculation of notional weekly earnings. Reference was made to the decisions of Chenoweth v TransAdelaide [2001] SAWCT 29 and Khammash v Royal Adelaide Hospital [2001] SAWCT 66. I agree with this submission but I do not think that it determines this matter.

9 The relevant terms of s 39 are as follows:-

"(1) Where a worker to whom weekly payments are payable is incapacitated for work or appears likely to be incapacitated for work for more than one year, the Corporation shall, during the course of each year of incapacity, review the weekly payments for the purpose of making an adjustment to the amount of those payments under this section.

(i) changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's disability arose; or

(ii) if the worker applies, in accordance with the regulations, for the adjustment to be made on the basis of changes in rates of remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time of the occurrence of the disability - changes in those rates of remuneration; and

(b) operates from the end of the year of incapacity in which the view is made. ..."

10 Mr Apps, counsel for the worker, took me to the definition of notional weekly earnings as provided for by the Act and drew my attention to the fact that it included adjustments having been made under the Act. He submitted that this necessarily included adjustments made pursuant to s 39. He submitted that where that section refers to "weekly payments are payable", it means "an entitlement".

11 For a whole variety of reasons a prima facie entitlement to weekly payments might not, at a particular point in time, translate to an actual entitlement to weekly payments. The worker might, for example, for various periods be earning a wage commensurate with the worker's notional weekly earnings, as was the case here. The worker's right to weekly payments might be suspended whilst the worker is overseas. There might be other reasons why weekly payments are not payable during a period of incapacity. Whilst the worker would not have an actual entitlement to weekly payments for such periods I do not think it follows that the worker is therefore not entitled to the adjustments that s 39 provides for. I can think of no obvious reason why Parliament would have intended to discriminate in this way, by limiting the application of the adjustments provided for by s 39 to periods when weekly payments were actually being paid. It is I think, instructive that the section does not talk in terms of "a worker to whom weekly payments are being paid". If it had been Parliament's intention to limit the application of the section to such circumstances one might have expected it to have used such words.

12 I think that Mr Apps' submission is essentially correct. In my opinion, the review provided for by s 39(1) is not limited to periods when there is a legal liability to actually pay weekly payments. I think the expression "weekly payments payable" means, in effect, a prima facie entitlement to weekly payments of income maintenance. I do not think it strains the words of the section to construe this provision in this way.

13 This does not mean that through such an adjustment the original calculation of weekly payments is being revisited. It is not. It is simply being adjusted to the limited extent that s 39 provides for.

14 In this case, having been found to be incapacitated for work as at 1 May 1991, the worker had a prima facie entitlement to weekly payments of income maintenance at that time. Once that incapacity extended beyond a year, she was entitled to a review of the weekly payments that she was potentially entitled to, as she was thereafter for each year that the incapacity persisted.

15 It follows, that for each year of incapacity following 1 May 1991 the worker was entitled to have her average weekly earnings adjusted to take into account changes in the rates of remuneration payable to workers generally. I would read the words "is made" as they appear in s 39(2)(b) as meaning "is or should have been made". It would in my view be ludicrous if a worker was deprived of the potential benefit of an adjustment under s39(2)(a)(i) because the compensating authority failed to discharge its duty in conducting the review. As I see it, the fact that the compensating authority, albeit for very good reason, did not appreciate that it was an obliged to conduct the review makes no difference. Thus, in my opinion, the worker's present entitlement to weekly payments should be calculated as if such adjustments were made.

16 The position in respect of the adjustment provided for by s 39(2)(a)(ii) is a little different. A right of a review of weekly payments based upon that provision is not automatic but can only be activated by an application in accordance with the regulations. The parties have placed before me a schedule to assist me in my determination of the amount to which the worker is entitled, should I resolve this argument in her favour. As I read it, the schedule adjusts the average weekly wage payable to a process worker, being position that the worker occupied at the time of her commencement of her incapacity on 1 May 1991, by reference to changes to the relevant Award. Given that the outcome of a review only operates from the end of the year in which the review is (and as I construe it, "or should have been") made, I do not think that I should assume that this necessarily reflects the fact that an application has been made or that there has been an agreement between the parties that I am to determine the quantum of the worker's entitlements as if such an application was made. If there has been an agreement about this the parties should advise my associate accordingly.

17 If there has been no such agreement then in my opinion, the adjustment should not be made by reference to the changes in the relevant Award. Rather, the worker's entitlement will be 80 per cent of the difference between her average weekly earnings as at 1 May 1991, as adjusted from year to year by changes in the rates of remuneration payable to workers generally, and the amount of $454.70 per week.

18 I trust that the parties will be able to sort this out and that if the adjustment is to be based upon changes in the rates of remuneration payable to workers generally, that they will be able to reach agreement as to what that adjusted figure should be. In that event they should advise my associate in writing of the agreed figure and I shall proceed to make the consequential calculation and issue a final order. If it cannot be agreed then I will have to determine it, and that will probably necessitate the receipt of further evidence.

19 The possibility of an appeal from some of my earlier rulings has been foreshadowed and as a result I have extended the time to lodge such an appeal to coincide with this ruling. As this matter still remains unresolved, subject to receiving submissions to the contrary, I propose to further extend the time to lodge an appeal against any of the rulings that I have made in this matter until 14 days after I deliver my final decision. If either party wishes to address me on this they ought to advise my associate in writing within 7 days of this day, otherwise my proposal stands.

20 As to the outstanding issues, if my associate is not advised by the parties within 14 days that the adjusted figure is in one way or another agreed, I shall list the matter for a directions hearing to schedule a hearing date to deal with them.