No Pay for One Day of Incapacity

Graham v Lutheran Aged Care Albury [2024] NSWPIC 637 (13 November 2024)

Emma Blackman, Partner, successfully obtained an Award in favour of the Respondent in respect of a claim for loss of earnings for one day.

The Applicant, Ms Graham, suffered an accepted injury to her left shoulder on 15 March 2021. She had little, if any, time off work after the injury. She also subsequently obtained alternate employment with R & R Electrical Contractors (the later employer). She earned more in her current employment with the later employer than she earned with the Respondent.

The Applicant claimed compensation for the cost of left shoulder surgery and for one day of compensation on 10 May 2024 to attend a medical appointment in Melbourne. The Respondent agreed to pay for the costs of the left shoulder surgery but not for the one day of compensation on 10 May 2024.

Issue 

Whether the Applicant was entitled to compensation for one day on 10 May 2024. The consequence being that, if compensation was not paid for that day, the Applicant may not have the right to recover compensation for medical and related expenses in the future because of the operation of Section 59A of the Workers Compensation Act 1987 (WC Act).

The Respondent argued that the Applicant was not entitled to be paid for the relevant day because the formula for calculating an entitlement specifically refers to a week. In the week in which 10 May 2024 fell, the Applicant in fact earned more than 95% of her PIAWE and the Respondent therefore submitted that there was no loss which would give rise to an entitlement pursuant to Section 36 of the WC Act.

Relevant Law

Section 33 of the Workers Compensation Act 1987 provides, “If total or partial incapacity for work results from an injury, the compensation is payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity”.

Section 36 of the Workers Compensation Act 1987 sets out the following:-

1. The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s PIAWE.
2. The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates-

(a) 95% of the worker’s PIAWE, less the worker’s current weekly earnings,

(b) The maximum weekly compensation amount, less the worker’s current weekly earnings.

Held

Compensation must be paid in accordance with the WC Act and Section 33 provides that a compensation is a weekly payment.

The purpose of Section 36 of the WC Act is to prescribe the rate at which compensation is payable. The calculation is made by reference to weekly amounts. The calculation in Section 36(2) of WC Act precludes payment to the Applicant in relation to the incapacity on 10 May 2024. Award for the Respondent.

Implications

The Commission accepted that compensation is a weekly payment in accordance with Section 33 of the WC Act. The effect is that workers may not be entitled to a payment for one day of incapacity if there is no relevant loss for the weekly period.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.