Case: Minto v Kmart Australia Limited [2022] NSWPIC 272
Date of Decision: 7 June 2022
Before: Personal Injury Commission of NSW
Member of the Commission: Gaius Whiffin


The Applicant, Ms Minto was employed by the Respondent, Kmart Australia Limited, as a customer service assistant from around October 2008. On 20 January 2019, the Applicant’s hours were reduced to 27 hours per week from 32 hours per week.

On 4 September 2019, the Applicant sustained an injury to her right arm, elbow, and hand when she tripped over a child who was sitting on the floor having a tantrum in the ladies apparel area.

The Respondent accepted liability for the injury initially though on 17 February 2021, issued a dispute notice pursuant to section 78 of the 1998 Act for the Applicant’s injuries on 4 September 2019.

Approximately a year later, the Applicant filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission contending that the Respondent calculated her Pre-Injury Average Weekly Earnings (PIAWE) incorrectly and sought weekly benefits compensation for the difference between her contended amount and the amounts paid and weekly benefits compensation from 17 February 2021 onwards pursuant to sections 37 and 38 of the 1987 Act.

At the preliminary teleconference, the Respondent withdrew its contentions with respect to sections 4 and 9A of the 1987 Act. The Applicant sought a general order for payment of treatment expenses though no order was sought in the ARD and thus Member Whiffin made no such order.

The issues before Member Whiffin were as follows:

  1. Whether the Applicant’s PIAWE had been correctly calculated.
  2. Whether the Applicant suffered from an incapacity as a result of her injury on 4 September 2019 in the period between 18 February 2021 and 27 February 2022 and if so, the extent of that incapacity.
  3. Whether the Personal Injury Commission has jurisdiction to award the Applicant compensation pursuant to section 38 of the 1987 Act and if so, whether the Applicant is entitled to compensation pursuant to section 38 of the 1987 Act.


PIAWE Dispute

The Applicant contended that he PIAWE was $627.47 based on the 52 weeks preceding the date of her injury.

The Respondent submitted that the Commission should only have regard to the Applicant’s earnings from 20 January 2019 to 4 September 2019 due to the operation of clauses 8A(2) and 8C of the Workers Compensation Regulations 2016, the latter of which relevantly provides:

“The relevant earning period (52 weeks before the date of injury) for a worker is to 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).”

The Respondent submitted that the Applicant’s PIAWE is $560.00 per week due to the change in hours in January 2019.

In reply, the Applicant submitted that Part 4 of the Workers Compensation Regulations 2016, which include clauses 8A(2) and 8C only applies to injuries received on or after 21 October 2019 noting the operation of clause 8(1) of the Workers Compensation Regulations 2016.

Member Whiffin accepted the submission in reply by the Applicant but determined that the Applicant’s PIAWE was $622.68 due to the operation of clause 2(2) of schedule 3 of the 1987 Act.


Member Whiffin did not accept the Respondent’s evidence that the Applicant’s condition caused by the incident on 4 September 2019 had ceased. Rather, the Member accepted the reported symptomology in the Applicant’s statement together with the Doctor’s report she had relied upon.

However, the next matter for determination was the extent of that incapacity. Relevant to this issue was the fact that the Applicant had been certified and was working 20 hours per week with lifting restrictions in the right arm up to 10 February 2021 when she ceased working in order to undergo breast cancer surgery.

The Applicant’s nominated treating doctor provided a certificate of capacity on 11 April 2021 which certified her as having no current work capacity with no explanation as the downgrade in capacity with respect to the workplace injuries.

Member Whiffin accepted the Respondent’s alternate submission that the Applicant had a current working capacity of 20 hours per week performing suitable employment to those she was performing immediately prior to her surgery on 10 February 2021.

Therefore, by operation of clause 8 of schedule 3 of the 1987 Act, Member Whiffin determined that the Applicant’s current weekly earnings for the period 18 February 2021 to 27 February 2022 was $406.60 being $20.33 x 20 hours as per parts 2-6 of the Fair Work Act 2009.

Noting that Member Whiffin had concluded that the Applicant had a current work capacity in suitable employment of 20 hours per week he was required to consider the criteria outlined in section 32A of the 1987 Act which defines ‘suitable employment’.

Member Whiffin, while having regard to the medical evidence, return to work process and certificate of capacity compliance was particularly cognizant of the fact that the Applicant was supplied such duties and actually undertook this work up to 10 February 2021 and in the absence of any contradictory evidence, determined these duties to be suitable employment.

With respect to section 32A(a)(ii), Member Whiffin noted that the Applicant did not rely upon any expert vocational evidence and thus, noting her 11 years of experience performing duties was satisfied that the duties were suitable having regard to her age, education, skills, and work experience. Member Whiffin was critical that the Applicant should have  led expert vocational or other evidence if she wanted to argue that there was no suitable employment available to her due to these factors.

PIC’s Jurisdiction with respect to section 38 of the 1987 Act

Section 38(2) and 38(3) refer to a worker being entitled to weekly benefits compensation beyond the second entitlement period pursuant to section 37 based on the capacity of the worker as ‘assessed by the Insurer’.

Member Whiffin, in adding to the plethora or arbitral decisions on the matter, determined that the Commission does have jurisdiction to determine disputes pursuant to section 38 and followed the Court of Appeal decisions in Sabanayagam v St George Bank Limited [2016] NSWCA 145 and Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113.

However, flowing from the Member’s views as to the Applicant’s incapacity, the Applicant had a current work capacity but had not returned to work since 10 February 2021 and thus did not satisfy either section 38(2) or 38(3). As such, Member Whiffin made an award for the Respondent from 28 February 2022 to the date of his decision.


This decision merely affirms the Commission’s views on its own jurisdiction with respect to section 38. However, Member Whiffin’s affirmation of Member McDonald’s decision in Chea v Woolworths Group Limited [2022] NSWPIC 26 and Member Isaksen’s decision in Mazzocchi V Unitrans Asia Pacific Pty Ltd [2022] NSWPIC 186 that the Commission is not required to await the Insurer’s decision before it may determine a dispute pursuant to section 38 on the basis that a worker should not be subject to a failure to determine by an Insurer with no right of review is illustrative of the Commission’s views as to its already broad jurisdiction pursuant to section 105(1) of the 1998 Act.

More importantly, when workers are engaging in suitable duties which cease due to a non-work related supervening events, an Insurer is capable of relying upon the same for the purposes of section 32A in making a work capacity decision.

It is the Worker’s onus to prove that a real job is not available to them, especially in circumstances where the medical evidence put forward by the Worker suggests that s/he has a capacity for work. The Applicant in this matter failed to tender any expert vocational evidence to support the conclusion that the employment was not suited to her age, education, skills and work experience.

This decision provides sensible and prudent precedent for all in respect of work capacity decisions where the sole issue in dispute is factors set out in section 32A(a)(ii).

 Contributor: Chris Smith

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.