DECISION OF PRESIDENT’S DELEGATE  	

Citation:	
Shakya v Cardno Staff Pty Limited [2022] NSWPIC 745	
		
APPLICANT:	Megha Shakya	
		
RESPONDENT:	Cardno Staff Pty Limited	
		
PResident’s Delegate:	Belinda Gamble	
		
DATE OF DECISION:	16 December 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Applicant injured left elbow during course of employment with the respondent; following injury she obtained work with new employer where her weekly wages exceeded 95% of her pre-injury average weekly earnings with the respondent; applicant suffered a recurrence of her injury and made a claim for one days wages; applicant initially argued her entitlement ought to be calculated by reference to her daily earnings; in written submissions applicant no longer pressed this argument but did not provide any basis upon which the claim for weekly benefits compensation was payable; Held –application has no prospects of success and is dismissed.
	
Orders made:	1.	The Application for Expedited Assessment is dismissed.

BACKGROUND

1.	On 27 July 2018, Megha Shakya, the applicant, injured her left elbow in the course of her employment with Cardno Staff Pty Ltd, the respondent. Ms Shakya was employed as a civil engineer.

2.	Following her injury and rehabilitation Ms Shakya obtained work with Blacktown City Council. In her new employment the applicant’s weekly wages exceeded 95% of her Pre-Injury Average Weekly Earnings (PIAWE).

3.	On 29 September 2021 Ms Shakya suffered a recurrence of her injury and could not work. Ms Shakya made a claim for one day of wages.

4.	On 26 November 2021 the respondent issued a notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which is stated, amongst other matters:

“However, as noted above, the payslip for the period 1 October 2021 – 7 October 2021 included 7 hours of sick leave paid during this period. If the earnings as noted on this payslip are anticipated to be the same for the period which includes 29 September 2021, we note that Ms Shakya has earned in excess of her weekly benefit entitlement, on the basis of her benefit being 95% of her PIAWE - $1,171.95 x 95% = $1,113.95. The payslips show that earnings for the period, excluding the 7 hours of sick leave, were $1,461.20 gross…”

5.	On 6 September 2021, Mr Shakya lodged an Application for Expedited Assessment seeking payment of compensation for 29 September 2022. Ms Shakya’s application is hopeless and is dismissed for the following reasons.

PROCEDURE BEFORE THE COMMISSION
6.	The parties attended a telephone conference before me, as a delegate of the President, on 29 November 2022.

7.	Mr Stuart Moffatt of counsel appeared for Ms Shakya, instructed by Steve Walker, Partner of the Walker Law Group. A paralegal from the Walker Law Group, Ms Ruby Russell, was also in attendance.  Mr Christopher Michael from Moray & Agnew Lawyers appeared for the respondent.

8.	During the telephone conference, the parties agreed that Ms Shakya’s PIAWE was $1,175.95. It was also noted that Ms Shakya’s post-injury weekly earnings during the day of the claim exceeded her PIAWE. Ms Shakya’s counsel sought to raise a “novel” argument that Ms Shakya’s entitlement to weekly benefits compensation ought to be calculated by reference to her “daily earnings” as opposed to her PIAWE. According to Ms Shakya’s counsel there was relevant case law to support such a proposition. The respondent maintained that Ms Shakya had no entitlement to weekly benefits compensation.

9.	I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them.

10.	In light of Ms Shakyra’s position, following the telephone conference on 29 November 2022, I issued the following directions:

“1. The parties agree that the applicant’s Pre-Injury Average Weekly Earnings (PIAWE) is $1,175.95;

2. The issue in dispute is whether the applicant is entitled to weekly benefits compensation for one day, on 29 September 2021;

3. The applicant is to lodge and serve written submissions by 6 December 2022.  The written submissions are to identify any case law relied upon to support her position that her entitlement to weekly benefits compensation is to be calculated by reference to her daily earnings for 29 September 2021 with Blacktown City Council, and not by reference to her PIAWE.  The applicant is to identify the specific paragraphs of any case law replied upon;

4. The respondent is to lodge and serve written submissions in reply by 
13 December 2022;

5. Following the receipt of the written submissions, the matter will be dealt with on the papers.”

11.	On 6 December 2022 Ms Shakya’s solicitor lodged written submissions. Whilst the submission referred to some case law, none of it supported the proposition raised by Ms Shakya’s counsel at the telephone conciliation. Paragraphs 5 and 6 of the Ms Shakya’s submissions stated:

“5. It is conceded that as a result of a substantial rise in the applicant's post-injury earnings, that her actual earnings during the week of 29 September 2021 exceeded 95 percent of her PIAWE.

6. The applicant no longer presses the claim that her entitlement ''be calculated by reference to her daily earnings."

12.	On 7 December 2022 the respondent’s solicitors lodged written submissions.

13.	On 9 December 2022 the Commission wrote to Ms Shakya’s lawyers as follows:

“In light of paragraph 5 and 6 of the applicant’s submissions, would the applicant please advise what orders the applicant is seeking, and the basis upon which the orders are sought.

Unless correspondence is received by 4pm on Friday 9 December, the matter will be struck out.”

14.	On 9 December 2022 a Ms Nadia Baker, a Partner of the Walker Law Group who did not appear at the telephone conference, wrote to the Commission as follows:

“Thank you for your below email.

Our instructions are to press the claim for one day of compensation notwithstanding what was said at the teleconference and the submissions made.”

15.	No further information was provided. Ms Shakya, through her solicitors, did not provide any basis upon which the claim for compensation is made.

ISSUE FOR DETERMINATION

16.	The issue for determination is whether Ms Shakya has an entitlement to weekly benefits compensation for one day, on 29 September 2022.

DOCUMENTS

17.	The following documents were in evidence before the Commission and have been taken into account by me in making this determination:

(a)	Application for Expedited Assessment, and attachments; 

(b)	Reply, and attachments; 

(c)	Applicant’s submissions; and

(d)	Respondent’s submissions.
. 
REASONS

18.	There is no entitlement to the compensation claimed.

19.	The “novel” argument that Ms Shakya’s entitlement ought to have calculated by reference to her daily earnings is hopeless and was correctly abandoned. No other basis has been identified as to why Ms Shakya’s is entitled to compensation in the circumstances where her earnings as at 29 September 2021 exceeded 95% of her PIAWE. There is no debate that Ms Shakya was in the section 37 period on 29 September 2021.

20.	The respondent does not dispute there is an entitlement to compensation. The respondent correctly submits that the Worker Compensation Act 1987 Act provides a mechanism for calculation of entitlement to compensation in respect of weekly compensation paid. As the applicant’s actual earnings exceed 95% of PIAWE, there is no entitlement to weekly compensation. 

21.	The application is dismissed.