Open scrollable table of contents

Print entire document

Merit review WC042/18

Our Reference: 042/18
Date of review: June 2018

Findings

  1. The following are findings made by the State Insurance Regulatory Authority (“the Authority”) on review and are to be the basis for the Insurer’s review decision.
  2. The Worker has a present inability arising from an injury such that they are not able to return to work in either their pre-injury employment or in suitable employment.
  3. The Worker has no current work capacity and is likely to continue indefinitely to have no current work capacity.
  4. The Worker satisfies the special requirement for continuation of weekly payments of compensation after the second entitlement period, pursuant to section 38(2) of the Workers Compensation Act 1987 (“the 1987 Act”).
  5. The Worker is entitled to weekly payments of compensation at the applicable rate provided by section 38(6) of the 1987 Act.

Recommendation based on findings

  1. The following recommendation made by the Authority is binding on the Insurer and must be given effect to by the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.
  2. The Insurer is to determine the Worker’s entitlement to weekly payments of compensation in accordance with my findings above from January 2018 (subject to any notice period required under section 54 of the 1987 Act).

Background

  1. The Worker injured their right ankle while working for the pre-injury employer. They had tripped and then rolled their right foot. They accepted a redundancy from their employer in 2016 and has not returned to employment since.
  2. The Worker has received weekly payments of compensation for an incapacity for work resulting from the injury.
  3. In January 2018, the Insurer made several work capacity decisions, including calculating the Worker’s entitlement to weekly payments of compensation as $0.00 effective from April 2018.
  4. The Worker sought an internal review by the Insurer. The Insurer made several decisions on review affirming the original work capacity decisions. The Worker received notice of the Insurer’s decision on internal review in May 2018.
  5. The Worker made an application for  merit  review  that  was  received  by  the  Authority  in May 2018. The application for merit review has been made within 30 days after the Worker received notice of the internal review, as is required under section 44BB(3)(a) of the 1987 Act.

Legislation

  1. The legislative framework governing work capacity decisions and reviews is contained in the:
  2. Section 43 of the 1987 Act describes a 'work capacity decision'.
  3. Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Information considered

  1. The information I have considered for this review are the application for merit review and the Insurer’s reply form, the documents listed in and attached to those forms, and any further information provided to the Authority and exchanged between the parties.

Submissions

  1. In the application for merit review, the Worker’s submissions may be summarised as follows:
    • The Insurer determined their PIAWE as $1,194.67. That amount does not include overtime. Their average earnings were $1,184.04. With overtime, their earnings were $1,394. Their gross yearly earnings were $73,000. A concierge position and customer service role’s gross earnings are around $45,000 to $50,000. This is nowhere near their earnings whist employed in their pre-injury role.
    • The Insurer states that their nominated treating doctor has approved the roles. They only approved them being employed for 4 hours, 3 days per week. They have since not found any suitable work.
    • There is also another certificate of capacity that has been submitted to the Insurer regarding another injury that happened at their workplace in July 2015. Due to the right foot injury, their left foot has been overcompensating and this has caused severe recurrence of pain in their left foot/ankle This was reported to the Insurer in August 2017.
    • The Insurer’s statement that they can work normal hours and normal days per week and that the previous stress injury has resolved is unfair. You cannot measure pain in each individual. They had visited both specialists for a period of less than 1 hour and the Insurer accepts the outcome of the specialist but not their treating doctor who knows everything about their medical history. NTD has been their treating doctor for 14 years and if anyone knows better about their medical history it is them.
    • They have sent numerous complaint letters to the Insurer but all have been ignored until recently. From virtually day one, they have had to put up with abuse from the case Worker and has been continually threatened that their benefits would cease.
    • The review has not been done fairly and the Insurer has based their decision on their own doctors and assessment done by persons that they employ.
    • Their pre-injury role had a broad range of duties. It was more of a hands-on role unlike the concierge/customer service positions that the Insurer believes they can do. For the concierge/customer service role, you need outstanding computer skills which they do not possess. They have never worked in hospitality nor do they have experience to even undertake an interview in both roles.
    • The Insurer has not taken their treating doctor’s certificate of capacity into consideration.
  2. The Insurer’s submissions in reply may be summarised as follows:
    • Current work capacity – section 43(1)(a)
      • The Worker has ‘current work capacity’ as defined in section 32A of the 1987 Act.
      • No evidence has been provided to suggest that the Worker is unable to work. The medical evidence from the nominated treating doctor demonstrates that the Worker has capacity to work.
      • The suitable employment options were approved by the NTD and treating specialist.
      • NTD has certified the Worker as being fit to work 15 hours per week.
      • The functional assessment was indicative of self-limiting behaviour by the Worker.
      • The evidence from both the treating specialist and independent medical examiner should be preferred. They both are of the view that the Worker is able to work full time. The opinions of both specialists are supported by radiological evidence.
    • Suitable employment – section 43(1)(b)
      • The employment option of concierge / customer service officer represents suitable employment as defined by section 32A of the 1987 Act.
      • The Insurer disputes the Worker’s submission the role requires “outstanding customer service [sic]skills.” Reliance is placed on the vocational assessment and labour market analysis.
      • The vocational assessment revealed that the Worker has basic computer skills. The labour market research indicated that the Worker has sufficient skills and capacity to perform the job.
      • Whether the Worker has previously worked in a similar role is not a relevant consideration. The role has had regard to the Worker’s age, education, skills and work experience as required by the definition of suitable employment.
    • Amount the Worker can earn – section 43(1)(c)
      • No evidence has been provided that the role of concierge/customer service officer has earnings in the vicinity of $45,000 to $50,000.
      • The vocational assessment report confirmed that a role with Assetlink had earnings of $1,121 per week. This amount is indicative of what the Worker is able to earn in suitable employment.
    • PIAWE – section 43(1)(d)
      • The Insurer relies on the wage information obtained from the pre-injury employer. The earnings report provides a detailed breakdown of what the Worker earned in the 52 weeks preceding the injury.
      • The report reveals the Worker received on $134.58 in overtime payments over the 52 week period. There are substantial amounts of allowances that the Worker received including:
        • Meal allowance $14.65
        • Position allowance $9,639.55
        • Higher grade pay allowance $217.48
        • Community allowance $176.00
      • Most allowance are excluded from PIAWE under section 44G of the 1987 Act. The above amounts must therefore be disregarded in any determination of PIAWE.
      • Even if it was accepted that the Worker did receive $200 per week in overtime payments (which is unsupported by the evidence), this amount would have been excluded from the PIAWE calculation after 52 weeks.
      • The Insurer’s calculation of PIAWE is correct.
    • Risk of further injury – section 43(1)(e)
      • The Insurer has not made a decision pursuant to section 43(1)(e).

Reasons

Nature of merit review

  1. This matter involves a merit review of the work capacity decisions of the Insurer in accordance with section 44BB(1)(b) of the 1987 Act.
  2. The Worker has made submissions about the treatment they have received from the Insurer and I note the contents of an email sent to the Worker in March 2018. I understand that these matters are very important to the Worker, however they cannot be the subject of a merit review. The review is not a review of the Insurer’s procedures in making the work capacity decisions and/or decisions on internal review.
  3. The review requires that I consider all the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.
  4. Also, it is the function of the Authority on merit review to arrive at the correct and preferable outcome in respect of the weeks covered by the Insurer’s original work capacity decision that is referred for review. Accordingly, any findings and recommendations made will apply to weekly payments of compensation from January 2018 (subject to any notice period required under the 1987 Act).

Current work capacity

  1. In assessing whether the Worker has “current work capacity” or “no current work capacity”, I am  required to refer to the definitions under section 32A of the 1987 Act:
  2. currentworkcapacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or their pre-injury employment but is able to return to work in suitable employment

    no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the ’s pre-injury employment or in suitable employment

  3. The above definitions require me to consider whether the Worker can return to work in their pre- injury employment and suitable employment.

Pre-injury employment

  1. There is no dispute between the Worker and the Insurer regarding their inability to return to their pre- injury employment, and this matter has not been referred to the Authority for review.
  2. I will proceed on the basis that the Worker is not able to return to their pre-injury employment.

Suitable employment

  1. “Suitable employment” is defined in section 32A of the 1987 Act as:
  2. Suitableemployment, in relation to a worker, means employment in work for which the worker is currently suited:

    (a) having regard to:

    (i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

    (ii) the worker’s age, education, skills and work experience, and

    (iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

    (iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

    (v) such other matters as the WorkCover Guidelines may specify, and

    (b) regardless of:

    (i) whether the work or the employment is available, and

    (ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

    (iii) the nature of the worker’s pre-injury employment, and

    (iv) the worker’s place of residence.

  3. The occupational rehabilitation provider prepared a vocational assessment report in December 2017. They proposed that employment as a concierge / customer service officer and security guard constitute suitable employment for the Worker.
  4. As can be seen from the above definition, suitable employment means employment in work for which the Worker is currently suited having regard to several factors including the nature of the Worker’s incapacity and the details provided in the medical information.
  5. Given the details provided in the medical information, I will address suitable employment having regard to the nature of the Worker’s incapacity over two separate periods, the first period being from the time the Insurer made its original work capacity decision (January 2018) to April 2016. This is because the nominated treating doctor (NTD), downgraded the Worker’s capacity for employment from April 2018.

Suitable employment from January 2018 to April 2018

Concierge / customer service officer

  1. The occupational rehabilitation provider detail the typical duties of a concierge / customer service officer in the vocational assessment report. Also, two employers were contacted to describe the role. The employer said:

    The role involves working as part of a team within a shopping centre at Macquarie Park to identify, meet and exceed customer needs and provide customer service to visitors to the shopping centre. The key duties of the role include: dealing with customers in person, by phone and via the internet; resolving customer complaints; problem solving and conflict resolution skills; organising loans of scooters and other mobility equipment; making bookings and updating databases; maintaining records.

  2. In addressing the hours concierge / customer service officer employees work, the occupational rehabilitation provider’s contact with employers in the open labour market reveals there is flexibility for casual staff to work part time shifts with the option to select the shifts that they are available for.
  3. Given this, I am persuaded that the Worker was suited to the role having regard to the hours and days per week the medical information supported they could work. This medical information was provided by treating orthopaedic, foot and ankle surgeon, physiotherapist, independent medical examiner and orthopaedic surgeon, functional assessor and the NTD. They all supported that the Worker could return to some type of employment for at least 12 hours per week.
  4. The occupational rehabilitation provider state that employment as a concierge / customer service officer is classified as sedentary work. Sedentary work involves sitting most of the time, but may involve standing for brief periods of time (as defined in the functional capacity evaluation report dated November 2017). This classification aligns with the employer feedback. For example, it was reported the role is mostly sedentary with intermittent standing and walking, with autonomy for the individual to vary positions as needed.
  5. The medical information supports that the Worker was suited this type of work having regard to the nature of their incapacity. For instance, NTD recommended that the Worker could stand for 40 minutes on the certificate of capacity they issued in January 2018. The physiotherapist recommended that the Worker could stand up to 1.5 hours in a physiotherapy report dated October 2017. I note that the Worker reportedly advised the assessor during their functional capacity assessment conducted in November 2017 that if they exceeded standing for 45 minutes they experience increased pain in their right foot and require a seated break.
  6. Also, work is classified as sedentary when involves lifting a maximum of 4.5 kilograms. The employer advised that lifting in the role is less than 2 kilograms associated with lifting office equipment and pushing and pulling is also less than 2 kilograms when operating computer equipment or a telephone. This did not exceed the Worker’s capacity. The functional assessor recommended that the Worker was capable of lifting or carrying 6.95 kilograms. NTD’s recommendation was that the Worker could lift, carry, push or pull 5 kilograms.
  7. NTD also certified that the Worker could bend, twist or squat at their own pace as tolerated. The employer said that bending, twisting and squatting are not key requirements of the role.
  8. I also note that treating orthopaedic surgeon, in response to a facsimile dated September 2017, advised that in their opinion the Worker had the capacity to undertake medium work over normal hours and days per week.
  9. Independent medical examiner (IME) examined the Worker in November 2017. Their opinion was that:
  10. [The worker] is fit for pre-injury duties. I would apply no restrictions. I would expect them to have some discomfort at this stage but it will continue to resolve as time progresses.

  11. Having had regard to the duties required of the role, the expressed employer comments and the recommendations given by the NTD, IME, physiotherapist and functional assessor, I am persuaded that employment as a concierge / customer service officer was work for which the Worker was suited having regard to the nature of their incapacity at the time the Insurer made its original work capacity decision.
  12. In considering the Worker’s work experience, I note that they held the pre-injury position with the pre-injury employer for about 15 years before their injury. In that role, they would enforce laws and regulations, carry out all duties in accordance with the applicable legislation, monitor and regulate breaches of legislation administered, educate and / or provide instruction, escalate breaches to the appropriate authority, and receive complaints and enquiries from the general public and determine their priority to undertake effective and appropriate action.
  13. From 1995 to 2001, the Worker in their previous role amongst other duties would complete office duties to prepare reports, respond to phone calls and undertake other associated administration.
  14. In my view, in undertaking the above duties for approximately 23 years, the Worker would have developed skills transferrable to many of the duties the employer reported are required in the concierge / customer service officer role. Such duties include excellent customer service skills, strong communication skills, the ability to assist the general public and the ability to work as part of a team.
  15. I have not found the Worker’s submission the role requires “excellent” computer skills persuasive and they have not provided information to support this assertion. I note from the vocational assessment report that employees use a computer when dealing with customers over the internet, making bookings, updating databases and maintaining records.
  16. The occupational rehabilitation provider report that the Worker has basic computer skills and they are able to navigate Windows, use Microsoft Office applications, use a keyboard, send emails and use the internet. Having regard to this, I consider the Worker has the necessary computer skills to be suited to the role.
  17. Further, while the Worker has no direct work experience as a concierge / customer service officer, the employer advised that “prior experience in a customer facing role would be advantageous and that the Worker’s experience in working with the general public would be viewed favourably”.
  18. The Worker submits that they do not have experience to even undertake an interview in the role. While I consider it is highly desirable for the Insurer to provide job seeking assistance for the Worker, having considered the above, I am satisfied that employment as a concierge / customer service officer is employment for which they are currently suited having regard to their age, education, skills and work experience.
  19. Given the information before me, I find that employment as a concierge / customer service officer constituted suitable employment for the Worker from January 2018 to April 2018.

Security Guard

  1. The occupational rehabilitation provider concluded that employment as security guard is suitable for the Worker considering their skills, experience and age on the basis that they complete training to obtain a security licence.
  2. The two employers contacted by them confirmed that the Worker would require a current NSW Security Licence prior to the commencing employment the role.
  3. Suitable employment means, my emphasis, “employment in work for which the Worker is currently suited […]”. That places an emphasis upon consideration of the education and skills that the Worker now possesses including those developed through any occupational rehabilitation services, not on the basis of education or skills that the Worker might one day acquire through training, such that the Worker may be suited to the role at a future point in time.
  4. The Worker does not have a current NSW Security Licence, a licence that is needed to undertake the role. On this basis, I am not persuaded that they are currently suited to employment as a security guard having regard to their education or skills.

The nature of the worker’s incapacity from April 2018 to date

  1. NTD issued two certificates of capacity in April 2018. The certificate issued for the right ankle certified the Worker capable of working 5 hours per day 5 days per week. The other certificate was issued for the Worker’s left ankle and it certified them as having no current work capacity from April 2018. The diagnosis provided for the left ankle injury is recurrence and aggravation.
  2. NTD issued two further certificates in the same terms in May 2018. The next review was scheduled for June 2018 however I do not have the more recent certificates before me.
  3. NTD also states why the left ankle injury occurred on the certificates issued in April and May 2018. They say it is:
  4. Due to overcompensation using Lt foot more than the injured Rt foot. Severe pain since it was very roughly examined by the Insurance doctor on xx/11/17.

  5. I also note that the Worker provided similar comments to the Insurer over two emails. For instance, in March 2018 (the latter email) they wrote to the Insurer and advised:

    My left foot injury now stems from being over used due to my right foot injury. My left foot has been compensating my right foot injury causing significant pressure being placed on my left foot/ankle.

  6. I will not reproduce the Insurer’s response to the Worker which was sent on the same day. However, it was indicated by the case manager to the Worker that they were changing their version of events. Despite this, the Insurer has not decided to dispute the Worker’s injury to the left ankle and issue a notice under section 74 of the 1998 Act. While this is not required, on the medical information before me, the Worker is now certified as having no capacity to return to suitable employment. NTD nominates a date of injury for the left ankle to be December 2017. There are no reports by treating orthopaedic surgeon, physiotherapist, IME or functional assessor prepared on or after that date which provides a contrary medical opinion to the NTD’s opinion, including on how the left ankle injury occurred and the nature of their incapacity arising from it.
  7. Again, suitable employment means employment in work for which the Worker is currently suited having regard to, amongst other factors, the nature of their incapacity and the details provided in the medical information including, but not limited to, any certificate of capacity supplied by them (under section 44B).
  8. I am not persuaded given the medical information before me, including the certificates of capacity, that the Worker has been able to return to any type of employment since April 2018 when having regard to the nature of their incapacity.

Findings on current work capacity and suitable employment

  1. I have found that employment as a concierge / customer service officer constituted suitable employment for the Worker from January 2018 to April 2018.
  2. Therefore, for the period January 2018 to April 2018, I find that the Worker had a then present inability arising from an injury such that they were not able to return to work in their pre-injury employment but they were able to return to work in suitable employment.
  3. Accordingly, I find that the Worker had current work capacity from January 2018 to April 2018.
  4. Given my reasons expressed above, I find the Worker has no current work capacity from April 2018.

The Worker’s ability to earn in suitable employment between January 2018 to April 2018.

  1. An assessment of the Worker’s ability to earn in suitable employment requires consideration of the hours per week they could work. There are divergent medical opinions before me on this point.
  2. The Worker submits that NTD has been their treating doctor for 14 years and if anyone knows better about their medical history it is them.
  3. However, treating orthopaedic surgeon and IME are specialist orthopaedic surgeons and I consider this makes them equally well placed to offer an opinion on the Worker’s physical capacity. I therefore on balance prefer their opinions when assessing the hours the Worker could work between January 2018 and April 2018.
  4. Further, I note that they both have had regard to the Worker’s pain symptoms when providing their opinion while also noting the outcome of an MRI scan performed in September 2017.
  5. Specifically, IME comments in their report that the MRI scan revealed the oedema associated with the acute injury had resolved. They however acknowledge that the Worker would experience ongoing symptoms which should improve with the passage of time. Similarly, in November 2017, treating orthopaedic surgeon commented that the recent MRI showed that the previous stress injuries had resolved and that they would expect the Worker’s right ankle symptoms to resolve over the coming months.
  6. In this instance, I am persuaded by the opinions given by them both that the Worker had the functional capacity to undertake full-time work between January 2018 and April 2018.
  7. I have not found the Worker’s submission that concierge position and customer service role’s gross earnings are around $45,000 to $50,000 persuasive and they have offered no evidence to support this. The vocational assessment report prepared by the occupational rehabilitation provider provides actual wage information sourced from employers in the labour market. In my view, this provides the best information to assess the rate of pay that the Worker could expect to earn as a concierge / customer service office.
  8. I am satisfied that the Worker has the skills and functional capacity to perform the identified role with the employer, which has an hourly base rate of pay of $29.50.
  9. I find that between January 2018 and April 2018, the Worker was able to earn $1,121 per week ($29.50 x 38 hours) in employment as a concierge / customer service officer.

Pre-injury average weekly earnings

  1. The Worker has referred the Insurer’s decision about the amount of their pre-injury average weekly earnings (PIAWE) for review. PIAWE is defined by section 44C(1) of the 1987 Act to mean:
  2. In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a k, means the sum of:

    (a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and

    (b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).

  3. In order to determine the Worker’s PIAWE, section 44C(1)(a) of the 1987 Act requires that I determine the average of their “ordinary earnings” during the “relevant period” (excluding any week during which they did not actually work and were not on paid leave) expressed as a weekly sum.

Relevant Period

  1. The “relevant period” is defined by section 44D(1) of the 1987 Act:
  2. Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:

    (a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or

    (b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.

  3. The Worker was continuously employed by the pre-injury employer for the period of 52 weeks prior to their injury. Therefore the “relevant period” is the 52 weeks immediately before the injury.

Ordinary Earnings

  1. “Ordinary earnings” are defined by section 44E(1) of the 1987 Act as:
  2. Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:

    (a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the followingamounts:

    (i) the worker’s earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,

    (ii) amounts paid or payable as piece rates or commissions in respect of that week,

    (iii) the monetary value of non-pecuniary benefits provided in respect of that week, or

  3. The definition of “ordinary earnings” in section 44E(1) of the 1987 Act requires that I consider whether or not the Worker’s ordinary earnings during the relevant period were calculated on the basis of a “base rate of pay” and “ordinary hours of work”.

Ordinary hours of work

  1. “Ordinary hours of work” are defined in section 44H of the 1987 Act as:
  2. (1) In relation to pre-injury average weekly earnings and current weekly earnings, the ordinary hours of work:

    (a) in the case of a worker to whom a fair work instrument applies are:

    (i) if the ordinary hours of work in relation to a week are agreed or determined in accordance with a fair work instrument between the Worker and the employer—those hours, or

    (ii) in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period, or

    (b) in the case of a worker to whom a fair work instrument does not apply:

    (i) if the ordinary hours of work are agreed between the worker and the employer, those hours, or

    (ii) in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period.

  3. Before me is the Worker’s employment contract dated July 2012. It says, “This is a full-time position within the organisation’s structure and the ordinary hours of work shall be 38 hours per week”.

    The Worker’s pay slips and the Local Government (State) Award 2014 (the “2014 Award”), which both covered their employment during the relevant period, support that their ordinary hours of work were 38.

  4. I therefore find the Worker’s “ordinary hours of work” in relation to their PIAWE are 38.

Base rate of pay

  1. “Base rate of pay” is defined by section 44G(1) of the 1987 Act as:

    In relation to pre-injury average weekly earnings and current weekly earnings, a reference to a base rate of pay is a reference to the rate of pay payable to a worker for his or their ordinary hours of work but does not include any of the following amounts (referred to in this Division as base rate of pay exclusions):

  2. (a) incentive based payments or bonuses,

    (b) loadings,

    (c) monetaryallowances,

    (d) piece rates or commissions,

    (e) overtimeor shift allowances,

    (f) any separately identifiable amount not referred to in paragraphs (a) to (e).

  3. The Worker’s pay slips reveal that the rate of their “base pay” for their ordinary hours of work was:
  4. $1,151.79 per week until 1 July 2017

    $1,184.04 per week thereafter

  5. The total base pay the Worker received during the relevant period equalled $60,118.83.
  6. The Worker also submits that their “position specific allowance” should be included in the calculation of their PIAWE. In reply to the Worker, Insurer indicates that the position specific allowance is a loading, and is therefore a base rate of pay exclusion which is not to be included in the calculation of PAIWE.
  7. The total position specific allowance that the Worker received during the relevant period equalled $9,639.55.
  8. In my view, amounts paid as a position specific allowance are to be included in the calculation of the Worker’s base rate of pay. This is supported by the 2014 Award, which at clause 4 defines “ordinary pay” to mean:
  9. remuneration for the employee's normal weekly number of hours of work calculated at the ordinary time rate of pay. Ordinary pay shall include, but not be limited to the following penalties and allowances where they are regularly received […].

  10. The position specific allowance is an amount of pay that was paid or payable to the Worker regardless of the days or hours they worked. They received the position specific allowance in each week of the relevant period for their ordinary hours of work, as follows:
  11. $184.68 per week until 1 July 2017

    $189.85 per week thereafter

  12. Therefore, the $9,639.55 while referred to as a position specific allowance in the payslips forms a part of the Worker’s base rate of pay as they regularly received it for their normal employment for their pre-injury position. It is not a base rate of pay exclusion under the 1987 Act.
  13. The Worker received a total of $542.71 for meal allowance, higher grade pay allowance, community allowance and overtime during the relevant period. However, the Worker did not regularly receive those amounts and I am therefore not persuaded they form a part of their ordinary pay, as described in Clause 4 of the 2014 Award. Loadings, allowances and overtime are to be excluded from the Worker’s base rate of pay under section 44G(1)(b),(c) and (e) of the 1987 Act.

Average of the Worker’s Ordinary Earnings

  1. Section 44E(1)(a) of the 1987 Act prescribes that “ordinary earnings” are calculated at the “base rate of pay” for “ordinary hours” in any week which the Worker worked or was on paid leave, amounts paid or payable as piece rates or commissions and the value of non-pecuniary benefit.
  2. I am not persuaded by the information before me that the Worker had received any amounts paid or payable as piece rates, commissions or non-pecuniary benefits.
  3. I therefore find that the ordinary earnings of the Worker in relation to a week during the relevant period is $1,341.51 (rounded to the nearest cent), calculated as follows:
  4. $69,758.38 total ordinary earnings ($60,118.83 + $9,639.55) ÷ 52 weeks = $1,341.50

Findings on PIAWE

  1. In order to calculate the Worker’s PIAWE, section 44C(1)(a) of the 1987 Act requires that I calculate the average of their ordinary earnings (which I have found to be $1,341.51) during the relevant period (which I have found to be the 52 weeks immediately before the injury) expressed as a weekly sum.
  2. Pursuant to section 44C(5) of the 1987 Act, overtime and shift allowance payments are permitted in some instances to be included in the calculation of a Worker’s PIAWE for the first 52 weeks for which weekly payments are payable. As the Worker has been paid in excess of 52 weeks of weekly payments, such amounts are not permitted to be included in this instance.
  3. Accordingly, I find the amount of the Worker’s PIAWE under section 44C(1) is $1,341.51.
  4. The Insurer is to determine the Worker’s entitlement to weekly payments in accordance with all the findings above. I note that when calculating the Worker’s weekly payments of compensation, their PIAWE should be varied in accordance with the indexation provisions in Division 6A of Part 3 of the 1987 Act.

Merit Reviewer
MeritReviewService
Delegate of the State Insurance Regulatory Authority