Aces Low
Theoret v Aces Incorporated [2020] NSWWCCPD 18
Theoret v Aces Incorporated [2020] NSWWCCPD 18 is a recent decision of the Presidential Division of the Workers Compensation Commission which is instructive on the issue of indexation of PIAWE for workers whose injuries occurred prior to the commencement of Section 82A of the Workers Compensation Act 1987 (the 1987 Act) on 1 November 2012.
Material Facts
The Appellant sustained injuries in the course of her employment on 21 December 2002. Liability was accepted and she received weekly compensation from June 2004.
According to Section 82A, the amount of a weekly payment made to a worker in respect of an injury is to be varied on each review date, being 1 April and 1 October in each year after the day on which the worker became entitled to weekly payments in respect of that injury. This is affected by varying the amount of the worker’s pre-injury average weekly earnings (PIAWE).
In accordance with Section 82A, on 1 April 2018 the Insurer made a decision that the Appellant’s PIAWE was $407.42. PIAWE was calculated by reference to 1 April 2018, which was the first review date on which the PIAWE was to be indexed following the commencement of Section 82A. The Appellant challenged that calculation and asserted that indexation should apply from the date that the Appellant first received compensation (i.e. June 2004) and not from the first review date after which Section 82A commenced. According to the Appellant, on that basis her PIAWE was in fact $690.19.
In the first instance, Arbitrator Harris declined to index PIAWE at a date prior to 1 April 2013. He referred to his previous decision in Thompson v ATN Channel 7 (No. 2) [2017] NSWWCC 269 in which he declined to index PIAWE from the date of injury, being March 2000, and instead indexed it from 1 April 2013.
Presidential Decision
Deputy President Wood at paragraph [12], accepted that the only issue for determination on appeal was whether the Appellant’s PIAWE should be indexed from the date she commenced receiving weekly payments (in the Appellant’s case 2002), or from 1 April 2013, which is the first review date on which the PIAWE was to be indexed after Section 82A was introduced into the 1987 Act.
It was the Appellant’s submission that the Arbitrator erred in law when he concluded that indexation only commenced from 1 April 2013 and did not apply from the date when the Appellant first suffered incapacity. The Appellant made lengthy submissions in support of her argument that Section 82A is retrospective.
Deputy President Wood upheld the Arbitrator’s decision. She found his reasons to be soundly based on accepted Authority.
Implications
For injuries sustained prior to the commencement of Section 82A of the 1987 Act, being 1 November 2012, PIAWE is to be indexed as from 1 April 2013.
If you have any questions about a particular workers compensation matter, please contact our team by phoning 02 4929 9333 (Newcastle) or 02 8297 5900 (Sydney).
