Chee v Sunny Building Construction Pty Ltd (NSWPIC 2022)

Link to Decision

Key Takeaways

Where evidence from a worker about earnings appears contradictory, unreliable and possibly even fabricated, the PIC may be inclined to prefer the employer’s evidence, particularly payslips.

Brief Facts

Liability was accepted and weekly compensation payments were paid for the worker’s claim in respect of a left leg injury on 22 June 2021.

In August 2021, the worker was issued with a notice advising that his weekly compensation payments would be reduced to $705.89 (the s37 rate) from 22 September 2021 on the basis that his s36 entitlement period would end on that date. The notice made reference to a PIAWE of $882.36.

In October 2021, the worker was issued with a review notice advising that his s37 payments would be reduced because it had been discovered that the worker’s PIAWE had been overstated. It was also stated that the relevant earning period for the purposes of calculating PIAWE was the 10 week period from 13 April 2021 (when he began employment) to 21 June 2021 and that the worker’s total earnings during this period were $8,400, based on payslips on file. Allowing for the periodic indexation of PIAWE, it was calculated that the worker’s PIAWE was in fact $850.

In March 2022, the worker was issued with a further notice confirming the October 2021 decision. The March 2022 notice referred to email correspondence between the worker and his alleged employer about payments made to the worker in July 2021 however the insurer’s position was that there was no indication that these payments were earnings. The insurer conceded the worker may have commenced employment before 13 April 2021 but that there was insufficient evidence to confirm an earlier date.

In July 2022, the worker lodged an application for expedited assessment with the PIC claiming weekly benefits where a work capacity decision regarding his PIAWE was in dispute.

At the teleconference hearing presided over by Kathryn Camp (the President’s delegate), it was agreed that the only issue in dispute was the worker’s PIAWE.

The worker’s evidence included that he began employment in around January 2021 but he was paid cash in hand. He argued his PIAWE should be around $1,482 comprising an average of 57 hours per week at $26 per hour. The worker relied on evidence of correspondence (mostly screenshots of WeChat conversations) between himself and a woman (Cecilia) who he claimed was his ‘boss’ where sums of money were referred to including figures of $1,360 and $3,020.

The thrust of the employer’s submissions was that the worker had provided insufficient evidence to prove his claim and the evidence he had provided should be afforded little or no weight. The employer submitted that the insurer’s PIAWE rate should be confirmed.

Decision

Ms Camp was not satisfied that the worker had discharged his onus of proof in establishing that the insurer's PIAWE determination was wrong. Her reasons included that:

• the worker did not identify a material error in the method used to calculate his PIAWE;
• it was unclear who Cecilia was and whether she was in fact the worker’s boss;
• it was unclear if the money the worker said he received from Cecilia was for work performed; it was not even clear that the worker received any money from Cecilia;
• the employer’s payslips contradicted the worker’s claim and Ms Camp was unable to reconcile that conflict in the worker’s favour;
• ‘consistent with the Workers Compensation Guidelines, the insurer assessed the applicant’s PIAWE based on the available payslips on file. Based on those payslips, iCare correctly identified the relevant factors to calculate the applicant’s PIAWE’; and
• ‘I decline to set aside the work capacity decision … I decline to make an interim payment direction’.

Implications

This decision highlights the importance of critically analysing a worker’s evidence of pre-injury earnings when calculating PIAWE and comparing that evidence with/against the employer’s evidence, particularly payslips.