CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Minto v Kmart Australia Limited [2022] NSWPIC 272	
		
APPLICANT:	Michelle Anne Minto	
		
RESPONDENT:	Kmart Australia Limited	
		
Member:	Gaius Whiffin	
		
DATE OF DECISION:	7 June 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Claims for injuries to right elbow/hand/thumb; consideration of wage material, factual material, medical reports and other treatment records; consideration of respondent’s pre-injury average weekly earnings (PIAWE) calculations and the effect of clauses 8A (2) and 8C of the Workers Compensation Regulation 2016; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the Workers Compensation Act 1987 (the 1987 Act) and ‘suitable employment’ under section 32A of the 1987 Act; Wollongong Nursing Home Pty Limited v Dewar considered; consideration of the jurisdiction of the Personal Injury Commission to determine claims under section 38 of the 1987 Act; Roberts v University of Sydney; Dickson v Zurich Financial Services Australia Limited; Mazzocchi v Unitrans Asia Pacific Pty Limited; Chea v Woolworths Group Limited; Lee v Bunnings Group Limited; and Sabanayagam v St George Bank Limited considered; Held– the Commission has jurisdiction to determine claims pursuant to section 38 of the 1987 Act; applicant’s current work capacity assessed as equivalent to 20 hours per week pursuant to the Fair Work Act 2009 (Cth) minimum wage; PIAWE assessed at $622.68; awards for the applicant pursuant to sections 36 and 37 of the 1987 Act; award for the respondent in relation to the applicant’s claim pursuant to section 38 of the 1987 Act.
	
determinations made:	1.	The applicant’s pre-injury average weekly earnings is $622.68.
2.	The applicant was incapacitated for work as a result of her personal injury on 4 September 2019, between 4 September 2019 and 27 February 2022. 
3.	The applicant was able to earn $406.60 per week in suitable employment between 17 February 2021 and 27 February 2022.
4.	The Commission has jurisdiction to determine the applicant’s entitlements pursuant to section 38 of the Workers Compensation Act 1987 (the 1987 Act).
5.	The applicant is not entitled to compensation pursuant to section 38 of the 1987 Act between 28 February 2022 and the date of this decision.
	
orders made:	1.	There will be an award that the respondent pay the applicant $591.55 per week (as adjusted) from 4 September 2019 to 4 December 2019, pursuant to section 36 of the 1987 Act.
2.	There will be an award that the respondent pay the applicant $494.14 per week (as adjusted) from 5 December 2019 to 11 February 2020, from 17 June 2022 to 7 July 2020, and from 11 February 2021 to 17 February 2021, pursuant to section 37 of the 1987 Act.
3.	There will be an award that the respondent pay the applicant $591.55 per week (as adjusted) from 12 February 2020 to 16 June 2020, and from 8 July 2020 to 10 February 2021, pursuant to section 37 of the 1987 Act.
4.	Credit is to be given to the respondent for all payments of weekly compensation, sick leave, or earnings, made during the relevant periods, when paying the awards referred to at paragraphs 6, 7, and 8 above.
5.	Leave is granted to the parties to approach the Commission should any further orders be required in relation to the awards referred to at paragraphs 6, 7, and 8 above.
6.	There will be an award that the respondent pay the applicant $91.54 per week (as adjusted) from 18 February 2021 to 27 February 2022, pursuant to section 37 of the 1987 Act.
7.	There will be an award for the respondent in relation to the applicant’s claim for weekly compensation pursuant to section 38 of the 1987 Act between 28 February 2022 and the date of this decision. 

STATEMENT OF REASONS

BACKGROUND
1.	Michelle Minto (the applicant) is 62 years old and commenced employment as a customer service assistant with Kmart Australia Limited (the respondent) in or around October 2008. She has not worked however for the respondent or any other organisation since February 2021, although she remains formally employed by it.
2.	The applicant alleges that she sustained injuries to her right elbow, hand and thumb on 4 September 2019 when she tripped over a child and fell, whilst working at the respondent’s Toormina store. She also alleges that as a consequence of these injuries, she has suffered psychological symptoms. 
3.	After sustaining the injuries, she was able to return to suitable employment duties with the respondent from December 2019 until February 2021, although there were periods when she was totally absent from her employment for treatment or leave. The nature of the suitable employment duties performed by the applicant varied.
4.	The respondent made weekly compensation payments to the applicant between 4 September 2019 and 17 February 2021, but the applicant alleges that it incorrectly calculated her relevant pre-injury average weekly earnings (PIAWE) during this period.
5.	On 17 February 2021, the respondent issued a notice denying liability under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to her injuries sustained on 4 September 2019. The applicant has as a result not received any weekly compensation or payment of her medical expenses, since 17 February 2021. 
6.	By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation from 4 September 2019 to date and on a continuing basis pursuant to sections 36, 37, and 38 of the Workers Compensation Act 1987 (the 1987 Act). 
ISSUES FOR DETERMINATION
7.	Following a teleconference before the Commission on 11 March 2022 (during which the respondent withdrew its contention in its notice under section 78 of the 1998 Act that the applicant needed to prove her injury pursuant to sections 4 and 9A of the 1987 Act), the parties agree that the following issues remain in dispute:
(a)	During the period between 4 September 2019 and 17 February 2021, did the respondent correctly calculate the applicant’s PIAWE when it made weekly payments to her.
(b)	During the period between 18 February 2021 and 27 February 2022, was the applicant (and if so, to what extent) incapacitated for work as a result of the 4 September 2019 injury, to allow an award of compensation to be entered for her pursuant to section 37 of the 1987 Act. 
(c)	During the period from 28 February 2022, does the Commission have jurisdiction to award the applicant compensation pursuant to section 38 of the 1987 Act. 
(d)	If the answer to (c) is in the affirmative, is the applicant entitled to compensation pursuant to section 38 of the 1987 Act. 
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
8.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.  
9.	An extensive conciliation conference was held in the dispute on 6 April 2022. On that occasion, Mr Hickey of counsel appeared for the applicant instructed by Mr Langler, and Mr Stanton of counsel appeared for the respondent instructed by Mr Biscevic. The applicant was present and a representative of the respondent (a licensed self-insurer) was also present.
10.	As the parties were unable to reach an agreed resolution of the dispute during conciliation, an arbitration hearing was required.
11.	The applicant commenced to provide oral submissions to the Commission on 6 April 2022, but there was insufficient time left from the allocated time in order for the applicant to complete those submissions and for the respondent to provide any oral submissions.
12.	Written submissions were therefore ordered and have been provided.
EVIDENCE
Documentary evidence
13.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	the ARD and attached documents;
(b)	the respondent’s Reply (reply) and attached documents;
(c)	the respondent’s Application to Admit Late Documents lodged 18 March 2022 (respondent’s AALD) and attached documents, and
(d)	the applicant’s Application to Admit Late Documents lodged 1 April 2022 (applicant’s AALD) and attached documents, except the documents between pages 6 and 15 inclusive. 
Oral evidence
14.	There was no oral evidence called at the arbitration hearing.
Applicant’s evidence
15.	The applicant provided a statement signed on 22 January 2022 (page 3 of the ARD). 
16.	She began working for the respondent at its Toormina store on 7 October 2008, having largely worked in clerical or office–based positions prior. She initially worked 32 hours per week, but her hours were reduced to 27 hours per week from 20 January 2019. She worked for the respondent as a customer service assistant. She alleges her average gross weekly earnings as at 4 September 2019 to be $627.47.
17.	She describes her accident on 4 September 2019, when she tripped over a child who was sitting on the floor having a tantrum in the ladies apparel area of the store. She fell, injuring her right arm, elbow and hand. She was taken by ambulance to Coffs Harbour Health Campus, where she was advised that she had sustained an ulnar fracture, a radial head fracture, and a dislocation to her right elbow. She was operated upon by Dr Jovanovic the following day. She had a titanium plate, nine screws, and a pin inserted into her right arm.
18.	She had physiotherapy treatment from 16 October 2019 with Sarah Brown, and she consulted with her general practitioner (Dr Taylor) on 24 October 2019. Dr Taylor also referred her to a psychologist (Tracey Adendorff), whom she consulted monthly during 2020.
19.	Her statement records that she returned to work for the respondent on 31 December 2019, although she began to be certified (by initially Dr Taylor and then by Dr Playle, who seems to have assumed the role of her general practitioner after 3 January 2020) as having a degree of work capacity from 5 December 2019. Her capacity for work was gradually upgraded by her general practitioners, so that by 20 May 2020, she was certified as being fit to work 21 hours per week with lifting, carrying, pushing and pulling restrictions. 
20.	She explains that she felt bullied and not believed by some of her managers during this return-to-work process. She particularly needed to make a number of complaints about the behaviour of Alan Baker. She states that she became “anxious and depressed because of how I was being treated at work, and because I could not get back to the way I was before my accident”.
21.	She then required time off work following further surgery performed upon her by Dr Jovanovic on 17 June 2020. The doctor then removed the plate and the screws in her right arm. 
22.	By 12 August 2020, she had been certified as fit to work 27 hours per week with restrictions in lifting and carrying. She continued to work with these certified restrictions until 19 January 2021, when Dr Playle certified her as being fit for only 20 hours per week with restrictions in lifting and carrying. These certified restrictions continued up to 10 February 2021, when she ceased working in preparation for breast cancer surgery. 
23.	She underwent that surgery on 15 February 2021, followed by chemotherapy and radiotherapy treatment. She continues to consult with her oncologist, Dr Baghi, in this regard.
24.	Dr Playle has certified her as being unfit for work since 7 April 2021. 
25.	She also consulted with a hand specialist, Dr Meads, on 29 January 2021. He advised her that she required surgery to her right hand, but she has decided not to proceed with that surgery. 
26.	Her statement records her ongoing disabilities which include significant pain in her right elbow, hand and thumb. She cannot fully extend her arm and has lost dexterity in it. She cannot lift weights of more than 2.5kg without an increase in her pain, and she cannot lift anything with her right arm above shoulder height. She has difficulty with tasks such as vacuuming, mopping, laundry duties, making beds, carrying groceries, driving long distances, opening bottles, and sewing. She has not been able to attend her dance classes since the accident. 
27.	She is still very depressed. She is especially anxious around young children, and describes a panic attack that she had when a young child ran past her and almost knocked her over.
28.	She finally explains that she does not believe that she is “fit to return to work with the respondent any longer because of my ongoing physical and psychological problems” and that “based on my age and work experience, I believe it would be very hard for me to find work and doubt any employer would take me on with my disabilities from my work injury”.
29.	The applicant relies upon a report from Dr Playle dated 29 March 2022 (page 89 of the applicant’s AALD). The doctor refers to her consultations with the applicant from 8 April 2020 and comments that her fall at work:
“resulted in the injury that was documented as a fracture dislocation of her right elbow which required internal fixation of the ulnar olecranon and radial head. She also sustained an avulsion fracture of the right thumb.”.
30.	She noted residual pain and restriction of movement was experienced until January 2021, and she documented reduced range of pronation and supination of the right elbow, as well as stiffness, reduced flexion and pain in the right thumb. She also noted that the applicant suffered adjustment issues in relation to the injury, and experienced anxiety about the risk of another fall. She had referred the applicant for physiotherapy treatment and psychological treatment, and she had also referred her to Dr Meads. 
31.	Dr Playle refers to her most recent examination of the applicant as demonstrating: 
“Michelle has limited strength in the right thumb and pain in the base of the right thumb and reduced fine motor control. She still has reduced pronation and supination of the right elbow and reduced extension of the right elbow. Michelle has anxiety about health related issues.”
32.	The doctor explains that the applicant is unfit to return to her full time pre-injury duties, due to her fatigue, anxiety, pain in her right thumb, and reduced range of movement in her right elbow. She states: 
“I do not know if Michelle is totally incapacitated for alternative employment as a result of the physical and psychological injuries. I believe she will not be able to return to pre injury employment duties in the future. This is my opinion as a GP”.
33.	There are a large number of certificates of capacity in the ARD (pages 269–391). The initial certificates relate to a right groin injury sustained by the applicant on 2 March 2017, but the certificates from page 288 relate to the 4 September 2019 accident. They are initially completed by hospital doctors, and then by Dr Taylor until 3 January 2020, and then largely by Dr Playle afterwards. The last certificate in the ARD is dated 29 November 2021, but there are also two certificates from Dr Playle in the applicant’s AALD (pages 92–97) both dated 18 March 2022. The certificates are largely consistent with the evidence in the applicant’s statement as to her certified work restrictions since her accident. 
34.	The certificates reveal that Dr Playle has certified the applicant as having no current work capacity since 11 April 2021. It is relevant to note however that between 21 December 2020 and 10 April 2021, the applicant was still certified as having some capacity for work for 20 hours per week, with lifting and carrying restrictions of up to 2kg. Further, between 12 August 2020 and 23 December 2020, the applicant was certified as having some capacity for work for 27 hours per week, with lifting and carrying restrictions of up to 1kg. 
35.	The ARD also contains the clinical notes from Beach Street Family Practice (where Dr Taylor and Dr Playle practice) up to 21 December 2020 (pages 148-268). I will refer to records in these notes where I am referred to them specifically during the submissions from both parties.
36.	The ARD contains a number of reports from Dr Jovanovic. The dates of these reports all pre-date the date when the respondent denied liability. 
37.	The doctor initially opined in his 11 November 2019 report (page 53 of the ARD) that “the timeframes for the work–related injury to resolve, reach maximum medical improvement or become stable and stationary is between 9 and 12 months from injury and surgery”.
38.	By 5 February 2020, the applicant was “progressing quite well given the extent of the injury that she sustained”. Her range of movement was improving but her extension was lacking. The doctor expected it to be another 12 months for her to reach maximum improvement.
39.	In his 2 March 2020 report to the respondent (page 56 of the ARD), the doctor warns against the applicant performing any activity that requires the use of her right arm for pushing, pulling and lifting. He states that there are no non-work related factors impacting on her return to work and that:
“Currently Ms Minto’s prognosis is guarded since she still has limited extension due to the presence of the plates and screws and during the last visit had symptoms of RSD that were improving. Ms Minto may require removal of plates and screws to improve the extension further and will need to continue with physiotherapy to improve her RSD symptoms. However I anticipate that it will take up to 12 months before she reaches the maximum improvement.”
40.	On 24 April 2020, the doctor requested approval from the respondent to undertake the surgery to remove the plate and screws. The surgery was undertaken on 18 May 2020, and in the doctor’s report of that date (page 63 of the ARD), he opined that the applicant “should be able to go back to her current work duties around four weeks from surgery”.
41.	However, by 17 June 2020, the doctor was reporting (page 65 of the ARD) that the applicant is still unfit for work, but should be able to go back to work under the ”current work arrangements” after two weeks if she has no significant complications. 
42.	By 1 July 2020, the doctor was reporting (page 66 of the ARD) that light duties employment for the applicant should be possible, and was estimating that she should be able to return to pre-injury duties in around six to eight weeks. However, he was also warning the applicant that she may not be able to reach full extension of her right elbow.
43.	The doctor repeated this advice to the respondent in a report dated 2 July 2020 (page 67 of the ARD). However he also noted in that report that there may be some psychological factors impacting on the applicant’s return to work.
44.	After the doctor last consulted with the applicant, in his report dated 8 October 2020 (page 69 of the ARD), he noted that it had been over one year since the applicant’s accident and initial surgery and that she had reached maximum improvement. She still however had -20° of extension and -40° of supination, as well as some loss of function of her right thumb.
45.	In January 2021, the applicant was referred to a hand specialist, Dr Meads. The doctor has prepared two reports, a report dated 29 January 2021 to Dr Playle (page 70 of the ARD) and a report dated 29 March 2021 to the applicant’s solicitors (page 72 of the ARD). The doctor consulted with the applicant by telehealth with Natalie Bond (a hand therapist) conducting the physical examination. The doctor took a history of the applicant’s accident, her resulting fractures and right thumb injury, and her surgeries. She reported to him that she had lost some pronation and supination with her right elbow, but that her main complaint related to a loss of mobility of her right thumb with increased stiffness, loss of strength, and loss of dexterity.
46.	The doctor records his examination findings as follows: 
“Examination was via third party but we were able to demonstrate that she had tenderness with palpitation of the CMC joint with a positive axial grind test. She had some tenderness over the STT joint also and pain with a Kirk Watson’s manoeuvre. She had a Kapandji score of 7. Her key pinch was 5 kgs on the left compared with 2 kgs on the right, tip to tip pinch strength of 2.5 kgs on the left and 1 kg on the right and tripod strength of 3 kgs on the left and 1 kg on the right. She had 70° of supination compared with 90° of pronation. She had no tenderness over the ulnar recess or instability in the distal radioulnar joint. She also had well healed scars of the proximal aspect of her radial head.”
47.	The doctor presumed that with her limitations and ongoing symptoms, she had a limited capacity for work and had not returned to pre-injury duties, although he took no specific history in this regard. He recommended initially trialling a cortisone injection, but also discussed surgery in the form of a trapeziectomy. Even with surgery however, he did not think that she would return to full strength.
48.	He reviewed radiology, and noted that the applicant was not aware of any problems in her right thumb or right elbow prior to her accident, even though arthritis was apparent in the base of her thumb. He opined that “the injury has aggravated and accelerated the development of symptoms in the base of her thumb”.
49.	The applicant’s solicitors provided Dr Meads with a copy of Dr Smith’s report (page 1 of the reply). Dr Meads noted Dr Smith’s opinion that the accident would have aggravated and accelerated the symptoms at the base of the applicant’s right thumb, but stated that there was a “point of contention” between them as to whether the aggravation was ongoing. The doctor disagreed with Dr Smith that further treatment was not necessary, stating that as her symptoms have not settled, they are unlikely to settle without surgical intervention.
50.	The ARD contains a report from Dr Hopcroft dated 10 March 2021 (page 30). The doctor had previously examined the applicant on behalf of her solicitors in relation to a right hip/groin injury that she had sustained on 2 March 2017. 
51.	Dr Hopcroft took a history of the applicant’s accident and treatment, and reviewed radiology. He noted her current status to involve complaints of pain on leaning on her right elbow, with significant loss of extension, and to involve pain in her right thumb with some restriction of movement. He also noted that the applicant’s elbow fracture had not allowed her to return to her dancing pasttime. 
52.	On examination, the doctor found that the applicant was lacking extension and flexion of her right elbow, and he also found marked tenderness over the right head of her radius, as well as slight restriction in abduction of the right thumb, which he believed was a result of osteoarthritis. 
53.	The doctor opined that the applicant had been left with “ongoing significant symptoms” as a result of her 4 September 2019 accident. He believed that her radiology convincingly showed that the articular surface of the radial head had not been restored to normal but had an ongoing significant volar angulation. He also believed that “the fracture line through the olecranon entered the joint surface, and that will be the significant and ongoing determinate for the development of post-traumatic arthritis in the elbow joint”. He found no evidence of arthritis in the right elbow joint prior to the accident and he did not find any evidence of arthritis in the left elbow joint.
54.	As a result of her accident injuries, the doctor found she still had a capacity to return to part-time work without repetitive lifting and with a lifting limit of 5-10kgs. The doctor did not believe that further surgery to either the right elbow or the right thumb was indicated.
55.	The applicant’s solicitors also provided Dr Hopcroft with a copy of Dr Smith’s report. Dr Hopcroft disagreed with Dr Smith as he could not detect any osteoarthritis in the applicant’s right elbow joint which pre-existed her accident, although he acknowledged that the applicant had some established osteoarthritic change in her right wrist.
56.	The applicant also relies upon medical evidence from Tracey Adendorff, psychologist, whom she consulted with both prior to and after 4 September 2019. There is a questionnaire completed by the psychologist on 26 March 2020 (page 75 of the ARD), in which the psychologist opined that the applicant suffered from an adjustment disorder not related to any pre-existing psychological condition. The psychologist also opined that the applicant’s symptoms had become worse with her return to work, as her return to work plan was not being adhered to, creating “immense stress for her”. Further, the psychologist stated:
“Ms Minto has experienced a panic attack following a child rushing past her and almost knocking her down. She did not have her support person with her and now experiences a fear that she is going to be injured again. This is causing anxiety.”
57.	The applicant also relies upon the clinical file of Tracy Adendorff (pages 16-88 of the applicant’s AALD). I will refer to records in this file where I am referred to them specifically during the submissions from both parties.
58.	The remaining medical evidence relied upon by the applicant consists of:
(a)	Various general practitioner treatment referrals (pages 44-45 and 48-50 of the ARD) - I will refer to these where I am referred to them specifically during the submissions from both parties.
(b)	X-ray reports in relation to the applicant’s right thumb dated 28 October 2019 (page 77 of the ARD) and 7 April 2020 (page 79 of the ARD) - revealing respectively osteoarthritis and degenerative changes.
(c)	X-ray reports in relation to the applicant’s right elbow dated 28 October 2019 (page 78 of the ARD) and 7 April 2020 (page 79 of the ARD) - revealing respectively “mild radial head volar angulation” and “there are now some degenerative changes that have developed in the elbow joint proper”.
(d)	An x-ray report in relation to the applicant’s right forearm dated 30 April 2020 (page 81 of the ARD) - revealing osteoarthritic changes in the wrist.
(e)	Various reports (pages 82-95 of the ARD) from Sarah Brown (physiotherapist) - detailing the treatment she provided in relation to the applicant’s right elbow, right wrist, and right hand (fingers and thumb) between 23 September 2019 and 13 November 2020 - I will refer to these reports where I am referred to them specifically during the submissions from both parties.
(f)	Hospital records (pages 96-147 of the ARD) - I will refer to these records where I am referred to them specifically during the submissions from both parties.
59.	Apart from containing medical and statement evidence, the ARD contains a detailed wages schedule (pages 401-406), which is based upon a schedule of the applicant’s earnings between 26 August 2018 and 25 August 2019 (pages 392-393) and weekly pay records supporting that schedule (pages 394–399), as well as a schedule indexing the applicant’s alleged PIAWE of $627.47 from 1 October 2019 (page 400). The wages schedule and the schedule indexing the applicant’s PIAWE are then updated in the applicant’s AALD (pages 98-105).
60.	The other relevant evidence relied upon by the applicant is: 
(a)	A letter from the respondent to her dated 8 April 2020 (page 12 of the ARD) - substantiating a complaint made by her in relation to the actions of Alan Baker, following an investigation of that complaint.
(b)	A list of workers compensation payments made to her by the respondent (pages 22-29 of the ARD).
(c)	An application form submitted by her dated 7 March 2022 (pages 3-5 of the applicant’s AALD) - requesting a continuation of weekly payments after 130 weeks.
Respondent’s evidence
61.	The respondent relies upon the medical opinion proffered by Dr Smith (page 1 of the reply) in his 13 November 2020 report.
62.	Dr Smith takes a consistent history from the applicant of her 4 September 2019 accident and her subsequent treatment for the injuries which she then received. He notes that there is radiological evidence of early arthritic changes in the elbow and mild to moderate osteoarthritis in the thumb. 
63.	He records that the applicant complained to him of stiffness in her elbow, stiffness in her thumb, and restriction in the range of movement in her elbow. On examination, he finds a number of ongoing restrictions including extension and flexion loss in the right elbow, significantly less supination of the right elbow compared with the left, less right forearm circumference compared with the left, global power loss in all movements of the right upper limb, and restriction in the range of movement of the right thumb base. 
64.	The doctor opines: 
“The diagnosis is a fracture-dislocation of the right elbow treated operatively and successfully. She had an aggravation to pre—existing thumb-based osteoarthritis. She had elbow joint arthritis on the right as a pre—existing phenomenon prior to the fall.”
“Her employment with Kmart Australia was the main contributing factor to the fracture-dislocation of the right elbow and the aggravation to her right thumb base arthritis. That aggravation has long since resolved and left no disability. She has a restriction in elbow extension, which is a consequence of the work accident of 4 September 2019. The restriction in flexion is probably consequent to her elbow arthritis.”
“The fall at work caused the fracture-dislocation and the aggravation of the thumb base arthritis on the right. The osteoarthritic changes present in the thumb base and the elbow joint itself predate the accident. It is part of the ageing process as it is affecting her. I cannot predict when the other elbow will become symptomatic or the left thumb base will become symptomatic. She will almost certainly have osteoarthritic changes in those joints as well.”
65.	The doctor believes that she is “fit to work in her usual occupation”, although she would have difficulty with overhead work and heavy repetitive activity. She does not require any further treatment. 
66.	The reply also contains some reports from Dr Jovanovic. Apart from a report dated 6 January 2021 (page 7 of the reply), these reports were also contained in the ARD and the opinions in them have already been noted. The 6 January 2021 report followed a request from the respondent in which the doctor was provided with a copy of Dr Smith’s report. 
67.	The doctor confirms his opinion that the applicant’s condition is “stable and stationary”, and he also advises that he agrees with Dr Smith that “the aggravation relating to the accident in September 2019 has now ceased”. The doctor provides no other explanations.
68.	The respondent also relies upon a wages schedule. It is to be found at page 1 of the respondent’s AALD. It alleges the applicant’s PIAWE to be $606.99 and annexes a print-out which I do not find to be helpful without further explanation (which has not been provided). 
Applicant’s submissions
69.	The applicant commenced her submissions orally on 6 April 2022.
70.	She referred to the detailed wages schedule, and the documents and other schedules supporting it, contained in the ARD and the applicant’s AALD. She submitted that the PIAWE calculation put forward by her of $627.47 was consistent with not only the evidence in her statement, but also the documentation in the ARD which showed her earnings with the respondent in the 52 weeks prior to her injury on 4 September 2019. She submitted that the wages schedule in the respondent’s AALD was not helpful to the Commission, and she questioned whether it actually contained competing documentation regarding her earnings with the respondent in the 52 weeks prior to 4 September 2019.
71.	She submitted that in the period between 4 September 2019 and 17 February 2021, she had worked for the respondent to the maximum of her capacity and in accordance with the restrictions and limitations referred to in her various certificates of capacity. There should therefore be no issue during this period (in which weekly compensation was paid to her by the respondent pursuant to sections 36 and 37 of the 1987 Act) in finding that the applicant’s current weekly earnings pursuant to the 1987 Act were in fact her actual weekly earnings, so that if the respondent underestimated her PIAWE, she would be entitled to be compensated for that under–payment pursuant to a mathematical calculation.
72.	During the oral submissions, the applicant also in some detail drew the attention of the Commission to the difficulties that she was experiencing in performing her work with the respondent in the period leading up to 17 February 2021. The applicant specifically referred to the clinical notes from Tracy Adendorff in the applicant’s AALD. Between 7 December 2019 and 14 January 2021, she consulted with Ms Adendorff on a monthly basis, and on each occasion, she mentioned in some detail the physical and psychological difficulties that she was experiencing with her work.
73.	The applicant’s submissions have otherwise been reduced to writing. I will not go through them in detail.
74.	The applicant seeks:
(a)	A “general order” for payment of treatment expenses pursuant to section 60 of the 1987 Act - however such an order was not sought in the ARD and I therefore do not propose to make one.
(b)	An award pursuant to section 36 of the 1987 Act for the period between 4 September 2019 and 1 December 2019, calculated according to a PIAWE rate of $627.47 (as adjusted) - with credit to be given to the respondent for payments of workers compensation or sick leave made by it during that period.
(c)	An award pursuant to section 37 of the 1987 Act for the period between 2 December 2019 and 27 February 2022, calculated according to a PIAWE rate of $627.47 (as adjusted) - with credit to be given to the respondent for payments of workers compensation or sick leave made by it during that period.
(d)	An award pursuant to section 38 of the 1987 Act for the period from 28 February 2022 to date and on a continuing basis, calculated according to a PIAWE rate of $627.47 (as adjusted).
75.	The applicant draws the attention of the Commission to the difficulties that she experienced with her work in late 2020, and she asks the Commission to accept the evidence in the certificates of capacity from Dr Playle that she has had no work capacity since 11 April 2021. She also notes that Dr Playle specifically states that in order for her to re-enter the workforce, she would require ongoing psychological support (which has so far been denied to her by the respondent).
76.	The applicant refers to Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55 (Dewar), and submits that even if she is theoretically capable of suitable employment pursuant to section 32A of the 1987 Act, there is not available to her “a real job in employment for which the worker is suited”.
77.	The applicant also submits that the Commission has jurisdiction to award compensation to her pursuant to section 38 of the 1987 Act and she refers to the decision in Chea v Woolworths Group Limited [2022] NSWPIC 26 (Chea) in this regard.  
Respondent’s submissions
78.	The respondent’s submissions have also been reduced to writing. I will not go through them in detail.
79.	The respondent starts by providing some calculations in its submissions that I find to be distinctly more helpful than the print-out in the respondent’s AALD.
80.	It submits that in calculating the applicant’s PIAWE, the Commission should have regard to her earnings between 23 January 2019 and 4 September 2019, rather than her earnings between 4 September 2018 and 4 September 2019. This is the effect of clauses 8A (2) and 8C of the Workers Compensation Regulation 2016, considering that the applicant reduced her hours of employment with the respondent from 32 per week to 27 per week on 20 January 2019. Clause 8C relevantly provides:
“(1) 	The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2) 	The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
81.	The earning period would otherwise be considered to be the 52 weeks prior to 4 September 2019, in accordance with Schedule 3, clause 2 (2) of the 1987 Act. 
82.	According to the respondent’s calculations, the applicant’s PIAWE calculated between 23 January 2019 and 4 September 2019 is $560 per week, whereas the applicant’s PIAWE calculated between 4 September 2018 and 4 September 2019 is $625 per week (a very similar figure to the PIAWE alleged in the applicant’s wages schedule).
83.	The respondent concedes that as it “has previously accepted and acted on the basis that the applicant’s actual earnings from 4 September 2019 to 14 February 2021 properly reflect what her capacity to earn was over this period”, if the Commission was to find that her PIAWE is greater than $606.99, she would be entitled to be compensated in this regard.
84.	In relation to whether the applicant continues to be incapacitated as a result of the injury on 4 September 2019, the respondent submits that the opinion of Dr Smith should be accepted as it is consistent with the opinion of Dr Jovanovic in his 6 January 2021 report. As Dr Jovanovic was the applicant’s treating specialist, his opinion in this regard should be given significant weight. It should therefore be accepted that the applicant’s incapacity as a result of her injury had ceased by 6 January 2021.
85.	If however the Commission was to find that the applicant was still incapacitated as a result of the injury on 4 September 2019, the respondent submits that the applicant would have still been able to work at least 20 hours per week since 17 February 2021, as she was working 20 hours per week prior to ceasing work on 10 February 2021 in order to undergo breast cancer surgery.
86.	The respondent submits that if the applicant has had no capacity for work since 17 February 2021, it would be on the basis of her breast cancer condition. The respondent concedes however that even so (under section 48 of the 1987 Act), weekly compensation would still be payable to the applicant on the basis that she was only able to work 20 hours per week.
87.	In relation to whether the Commission has jurisdiction to make an award pursuant to section 38 of the 1987 Act, the respondent submits that it does not, and relies upon the authority of Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee).
88.	In any case, the respondent argues that the applicant would not be entitled to an award pursuant to section 38 as she has current work capacity (at least 20 hours per week) but has not returned to work. 
Applicant’s submissions in reply
89.	The applicant lodged some very brief written submissions in reply. The submissions made the point that Part 4 of the Workers Compensation Regulation 2016 (which includes clauses 8A (2) and 8C) only applies to injuries received on or after 21 October 2019 (which would not include the applicant’s injury) pursuant to clause 8. 
FINDINGS AND REASONS 
During the period between 4 September 2019 and 17 February 2021, did the respondent correctly calculate the applicant’s PIAWE when it made weekly payments to her
90.	I accept the applicant’s submission in reply that clauses 8A (2) and 8C of the Workers Compensation Regulation 2016 do not apply in relation to the applicant’s injury. Her PIAWE therefore needs to be calculated by considering her earnings in the 52 weeks prior to 4 September 2019, in accordance with schedule 3, clause 2 (2) of the 1987 Act.
91.	The applicant’s wages schedule in this regard provides significantly more clarity than the respondent’s wages schedule. It relies upon an earnings history for her that refers to specific dates and the total gross payments which she received on those dates. I intend to rely upon that earnings history in order to calculate the applicant’s PIAWE.
92.	As a result, I find the PIAWE to be $622.68. My calculations differ slightly from the calculations in the applicant’s wages schedule as I have not included her earnings during the week ending 2 September 2018, but I have included her earnings during the week ending 1 September 2019.
93.	I find the respondent’s calculation as to the PIAWE ($606.99) to therefore be incorrect. Considering the respondent’s concession at paragraph 83 above, the applicant is entitled to have the weekly compensation payments which she received from the respondent between 4 September 2019 and 17 February 2021 re-calculated.
94.	From 4 September 2019 to 4 December 2019, she should have received $591.55 (as adjusted) (95% of PIAWE) per week pursuant to section 36 of the 1987 Act. I intend to make an award accordingly with credit to be given to the respondent for all payments of compensation or sick leave paid during the period.
95.	Between 5 December 2019 and 17 February 2021, there were periods when the applicant did not work or worked less than 15 hours per week. Doing the best I can and in reliance upon the information in the applicant’s statement and her various certificates of capacity, it would seem that these periods were between 5 December 2019 and 11 February 2020, between 17 June 2020 and 7 July 2020, and between 11 February 2021 and 17 February 2021. During these periods, the applicant should have received $494.14 (as adjusted) (80% of PIAWE) per week minus any amounts which she received in earnings during each week, in accordance with section 37 (3) of the 1987 Act. I intend to make an award accordingly with credit to be given to the respondent for all payments of earnings, compensation, or sick leave paid during the periods.
96.	Between 5 December 2019 and 17 February 2021, there were other periods when the applicant worked 15 hours per week or more. Doing the best I can and in reliance upon the information in the applicant’s statement and her various certificates of capacity, it would seem that these periods were between 12 February 2020 and 16 June 2020, and between 8 July 2020 and 10 February 2021. During these periods, the applicant should have received $591.55 (as adjusted) (95% of PIAWE) per week minus any amounts which she received in earnings during each week, in accordance with section 37 (2) of the 1987 Act. I intend to make an award accordingly with credit to be given to the respondent for all payments of earnings, compensation, or sick leave paid during these periods.
97.	I trust that awards made in the above fashion will allow the parties to correctly identify the underpayments made to the applicant between 4 September 2019 and 17 February 2021.
98.	I will however grant leave for the parties to approach the Commission should any further orders be required in this regard.
During the period between 18 February 2021 and 27 February 2022, was the applicant (and if so, to what extent) incapacitated for work as a result of the 4 September 2019 injury, to allow an award of compensation to be entered for her pursuant to section 37 of the 1987 Act 
99.	Having reviewed the medical evidence presented by the parties, there is a common thread that the applicant continues to suffer disabilities to her right elbow, hand and thumb. Dr Smith finds significant restrictions on examination (see paragraph 63 above), as do Dr Meads (see paragraph 46 above) and Dr Hopcroft (see paragraph 52 above). When Dr Jovanovic last consulted with the applicant on 8 October 2020, he also found significant loss of extension and supination in her elbow as well as some loss of function of her thumb, even though he concluded that she had reached maximum medical improvement.
100.	The applicant’s statement also refers to her ongoing disabilities in some detail (see paragraphs 26-27 above). I accept the applicant’s evidence in this regard. There has been no suggestion by the respondent that I should not, and I find that during the course of her treatment, she has presented a consistent history of her 4 September 2019 injury and her symptoms from it.
101.	In that context, I find it difficult to accept the opinion of Dr Smith. He finds significant ongoing restrictions on examination, but then finds most of those restrictions to be due to a pre-existing arthritis condition. In my opinion he does not sufficiently explain how the aggravation of the condition from the 4 September 2019 injury ceased, in circumstances where I accept the evidence of the applicant that she did not have symptoms in her right elbow, hand and thumb prior to that date, but has continued to have symptoms since. Dr Smith does however concede that the applicant's current elbow extension restriction is still a consequence of the 4 September 2019 injury. 
102.	It is also relevant to note that the doctor believes that the applicant’s left thumb and left elbow will eventually become symptomatic with osteoarthritic changes. Those joints however are currently asymptomatic, as were the applicant's right elbow and right thumb prior to the 4 September 2019 injury. I do not believe that Dr Smith has properly explained how the ongoing symptomology in the right elbow and right thumb is due to arthritis, when there is no symptomatic arthritis in the left elbow and left thumb.
103.	Both Drs Meads and Hopcroft also disagree with Dr Smith's opinion, Dr Hopcroft finding no evidence of arthritis in the left elbow and no evidence of arthritis in the right elbow prior to 4 September 2019.
104.	Dr Jovanovic states that he agrees with Dr Smith in his 6 January 2021 report. The respondent asks the Commission to place significant weight upon this report. I do not however do so. The report is exceedingly brief (only answering four questions posed by the respondent with one sentence answers), and at the time of preparing it, the doctor had not consulted with the applicant since 8 October 2020. At that time, as previously noted, the doctor had found that the applicant still had significant loss of extension and supination in her elbow as well as some loss of function in the thumb.
105.	It is further important to realise that during the period between 18 February 2021 and 27 February 2022, the only doctor who was constantly aware of the applicant’s condition was her general practitioner, Dr Playle. In that doctor’s 29 March 2022 report, she notes that when the applicant last consulted with her in January 2022, the applicant still lacked full range of movement of her right elbow and thumb, still had limited strength and reduced fine motor control in her right thumb, still had reduced pronation and supination of her right elbow and reduced extension of her right elbow, and also still had anxiety. 
106.	In the circumstances, I accept the evidence of Drs Meads, Hopcroft and Playle. I find that the applicant still has significant symptoms in her right elbow, hand and thumb, caused by her 4 September 2019 injury.
107.	The next question for the Commission is the extent to which those symptoms incapacitated the applicant for work between 18 February 2021 and 27 February 2022.
108.	It is relevant to note in this regard that the applicant’s certificates of capacity certified her as being fit to work 27 hours per week prior to that period, between 12 August 2020 and 23 December 2020 (albeit with lifting and carrying restrictions).
109.	The applicant submits that she had too many difficulties performing these employment duties for 27 hours per week. She refers to her need to take leave in this regard, and she points to her consultations with Tracy Adendorff, the notes from which explain the difficulties that she was having.
110.	As a result, Dr Playle issued different certificates of capacity on 21 December 2020 and 18 January 2021. These certificates certified the applicant as only being fit for 20 hours work per week, and they imposed lifting and carrying restrictions of up to 1 kg in the right hand as well as restrictions reaching above the head. 
111.	The applicant was working pursuant to these certificates when she last worked for the respondent on 10 February 2021. She ceased working on that date in order to undergo breast cancer surgery.
112.	Although Dr Playle issued different certificates of capacity from 11 April 2021 certifying the applicant as having no current work capacity, there is no explanation as to why the doctor provided this certification in circumstances where her symptoms (as referred to in the doctor’s 29 March 2022 report) were similar to the symptoms experienced by her for some time. Further, despite certifying her as having no work capacity in the certificates of capacity, the doctor admitted in her 29 March 2022 report that she did not know if the applicant was totally incapacitated.
113.	In the circumstances, I do not believe that the applicant has no current work capacity. She is however not fit for her pre-injury employment, as Dr Playle makes clear in her 29 March 2022 report, and as Dr Meads presumed (see paragraph 47 above). My opinion is that Dr Hopcroft (who examined the applicant in March 2021) is correct in his opinion that the applicant has a capacity to return to part time work without repetitive lifting and with a lifting limit of 5-10kgs. These restrictions are not dissimilar to the restrictions in the certificates of capacity dated 21 December 2020 and 18 January 2021, although the lifting limit in the certificates is less.
114.	Having not accepted the opinion of Dr Smith earlier, I do not propose to accept his opinion regarding the applicant’s fitness for work. 
115.	While Dr Jovanovic has not provided an opinion as to the applicant’s work capacity since his 2 July 2020 report, it is relevant to note that in his 8 October 2020 report, he found significant restriction in elbow extension and supination. 
116.	In the circumstances, I accept the alternate submission of the respondent that the applicant has a current working capacity of 20 hours per week performing duties similar to the duties that she was performing immediately prior to 10 February 2021. The evidence supports that she has had this capacity during the whole period between 18 February 2021 and 27 February 2022. 
117.	I also accept the submission of the respondent to utilise the minimum wage (set pursuant to part 2-6 of the Fair Work Act 2009 (Cth)) to calculate the applicant’s ‘current weekly earnings’ in accordance with the definition in schedule 3, clause 8 of the 1987 Act. I therefore find her current weekly earnings to be $406.60 ($20.33 per hour x 20 hours).
118.	The applicant will be entitled to an award (for the period between 18 February 2021 and 27 February 2022) pursuant to section 37 (3) of the 1987 Act in the amount of $91.54 per week (as adjusted), being an amount equivalent to 80% of her PIAWE less her current weekly earnings as determined by me.
119.	As correctly pointed out by both parties during their written submissions, section 48 of the 1987 Act allows me to make this award notwithstanding any incapacity suffered by the applicant because of her breast cancer condition. In any case, I have no reliable evidence as to whether that condition causes any incapacity.
120.	In coming to the conclusion that the applicant has a current working capacity of 20 hours per week in suitable employment, I have considered the criteria outlined in section 32A of the 1987 Act, which provides as follows:
“’suitable employment’ 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 Workers Compensation 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.”	
121.	In coming to the conclusion that there is suitable employment available to the applicant, I have mainly had regard to the medical evidence (especially the opinions of Drs Hopcroft and Meads, but also the certificates of capacity issued prior to 10 February 2021), but I have also considered the return to work process adopted by the respondent. While some of the applicant’s managers were not particularly supportive of that process, it does seem from the evidence that the respondent largely complied with the certificates of capacity (especially in relation to the number of hours to be worked per week) issued by the applicant’s doctors up until the applicant last worked on 10 February 2021. In that sense, up until that date, the respondent had supplied the applicant with suitable employment and the applicant had undertaken that employment.
122.	In relation to the applicant’s age, education, skills, and work experience, the applicant has not provided the Commission with any expert vocational evidence. The applicant’s statement however attests to a constant and varied work history, and the attaining of 10 educational certificates after leaving high school. In my opinion this work history would clearly assist the applicant in obtaining suitable employment. The applicant is 62 years old and some years from retirement age. The applicant should have led expert vocational or other evidence if she wanted to argue that there was no suitable employment available to her because of her age, education, skills, and work experience.
123.	I have also as requested by the applicant considered the authority of Dewar.
124.	I consider the work that the applicant was performing prior to 10 February 2021 to be “a real job”, which she is currently capable of performing. There is no evidence that it would not be available to her on an ongoing basis. There is also no expert vocational or other evidence tendered by the applicant, in circumstances where the applicant was aware that Dr Meads believed that she had a capacity for work (albeit limited) and that Dr Hopcroft believed that she had a capacity to return to part-time work without repetitive lifting and with a lifting limit of 5-10kgs. The applicant bears the onus of proving that a real job is not available to her, especially in circumstances where the medical evidence put forward by her suggests that she has a capacity for work. I do not believe that the applicant has discharged this onus.
During the period from 28 February 2022, does the Commission have jurisdiction to award the applicant compensation pursuant to section 38 of the 1987 Act 
125.	Section 38 of the 1987 Act provides as follows: 
“(1)    A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if--
(a)    the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)    the worker has returned to work (whether in self-employment or other     employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)     the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
…”
126.	They have now been a number of decisions from the Commission confirming that it has jurisdiction to determine disputes pursuant to section 38. I intend to follow these decisions, which include Roberts v University of Sydney [2021] WCC 25 (Roberts), Dickson v Zurich Financial Services Australia Limited [2022] NSWPIC 22 (Dickson), Chea, and Mazzocchi v Unitrans Asia Pacific Pty Limited [2022] NSWPIC 186.
127.	The decisions distinguish Lee following the amendments made by the Workers Compensation Legislation Amendment Act 2018, and the Court of Appeal decision in Sabanayagam v St George Bank Limited [2016] NSWCA 145 (Sabanayagam).
128.	 In Dickson, Senior Member Haddock [at 196] summarises the judgment of Sackville AJA (with whom Beazley P agreed) in Sabanayagam:
“(a) 	Pursuant to section 105(1) of the 1998 Act, the Commission has jurisdiction over matters that arise under either the 1987 Act or the 1998 Act. A matter arises under a law of the Parliament ‘if the right or duty in question owes its existence to the law or depends on the law for its enforcement’, at [125].
(b) 	The worker was entitled to weekly compensation after the second entitlement period ‘if she satisfied the requirements of s 38(2) or s 38(3)’of the 1987 Act at [127].
(c) 	‘It follows that if s 43(1) and (3) are put to one side, the Commission would have jurisdiction to settle the controversy between the Worker and the Insurer (representing the Bank). For example, the Commission would have jurisdiction to evaluate the medical evidence relied on by the Insurer in order to determine whether the Worker was capable of returning to her pre-injury employment. Similarly, the Commission would have jurisdiction to determine whether the insurer had misconstrued the legislation, thereby causing it to make an erroneous decision’ at [128].
129.	 The Senior Member then states (references to Arbitrator Harris’ findings refer to his findings in Roberts):
199.	“The 1987 Act and the 1998 Act were amended by Workers Compensation Legislation Amendment Act 2018 (the 2018 Act). The jurisdiction of the Commission was enlarged by the repeal of sections 43(1) and 43(3) of the 1987 Act, to which Sackville AJA referred in Sabanayagam; by the repeal of the note to section 105 of the 1998 Act that restricted the Commission’s jurisdiction to determine a dispute about a WCD; by the repeal of various sections relating to review of WCDs (the former sections 44BA to 44BF of the 1987 Act); and by the insertion of section 289B of the 1998 Act, which provides that a ‘referral of a dispute for determination by the Commission’ of a WCD operates to stay the decision.    
200.	As Arbitrator Harris held, and with which I respectfully agree, contextually, the amendments made by the 2018 Act only served to reinforce the broad jurisdiction of the Commission. Section 289B clearly contemplates that the Commission will determine a dispute about a WCD. There appears to be no logical reason for the Commission to have jurisdiction in the first and second entitlement periods, pursuant to sections 36 and 37 of the 1987 Act, but not in the third entitlement period, pursuant to section 38 of the Act.
201.	Despite the reference in section 38 to matters arising under that section being decided by the insurer, I agree with Arbitrator Harris that the broad jurisdiction under section 105 for the Commission to hear and determine all matters arising under the 1987 and 1998 Acts includes jurisdiction to determine disputes regarding workers’ entitlements pursuant to section 38 of the 1987 Act.”
130.	Further, the Senior Member states:
203.	“The Commission’s jurisdiction to award weekly compensation after the third entitlement period was confirmed by the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113. It would indeed appear ‘irrational and unjust’ that the Commission would have jurisdiction to award weekly compensation after the expiry of five years, but not to award it during the section 38 period.”
131.	I agree entirely with the reasoning of Senior Member Haddock. I find that I have jurisdiction to determine the applicant’s entitlements pursuant to section 38 of the 1987 Act.
If the answer to (c) is in the affirmative, is the applicant is entitled to compensation pursuant to section 38 of the 1987 Act 
132.	I have found that the applicant has current work capacity. She is therefore not entitled to compensation pursuant to section 38 (2).
133.	In relation to section 38 (3), as she has not returned to work since 10 February 2021, I am unable to award her compensation pursuant to subsection (b).
134.	In the circumstances, there has to be an award for the respondent in relation to the applicant’s claim for weekly compensation from 28 February 2022 to the date of this decision. 
SUMMARY
135.	I find the applicant’s PIAWE to be $622.68.
136.	I find that the applicant was incapacitated for work as a result of her personal injury on 4 September 2019, between 4 September 2019 and 27 February 2022. 
137.	I find that the applicant was able to earn $406.60 per week in suitable employment between 17 February 2021 and 27 February 2022. 
138.	I find that the Commission has jurisdiction to determine the applicant’s entitlements pursuant to section 38 of the 1987 Act.
139.	I find that the applicant is not entitled to compensation pursuant to section 38 of the 1987 Act between 28 February 2022 and the date of this decision.
140.	There will be an award that the respondent pay the applicant $591.55 per week (as adjusted) from 4 September 2019 to 4 December 2019, pursuant to section 36 of the 1987 Act.
141.	There will be an award that the respondent pay the applicant $494.14 per week (as adjusted) from 5 December 2019 to 11 February 2020, from 17 June 2022 to 7 July 2020, and from 11 February 2021 to 17 February 2021, pursuant to section 37 of the 1987 Act.
142.	There will be an award that the respondent pay the applicant $591.55 per week (as adjusted) from 12 February 2020 to 16 June 2020, and from 8 July 2020 to 10 February 2021, pursuant to section 37 of the 1987 Act.
143.	Credit is to be given to the respondent for all payments of weekly compensation, sick leave, or earnings, made during the relevant periods, when paying the awards referred to at paragraphs 140, 141, and 142 above.
144.	Leave is granted to the parties to approach the Commission should any further orders be required in relation to the awards referred to at paragraphs 140, 141, and 142 above.
145.	There will be an award that the respondent pay the applicant $91.54 per week (as adjusted) from 18 February 2021 to 27 February 2022, pursuant to section 37 of the 1987 Act.
146.	There will be an award for the respondent in relation to the applicant’s claim for weekly compensation pursuant to section 38 of the 1987 Act between 28 February 2022 and the date of this decision.